Corporate and Real Properties Consultants and Litigations
*Adedayo V. Christine (2021) 9 NWLR (Pt. 1780) 148*
*Whether Payment of Certification Fee Must Be Endorsed on Certified Document-*
_"Section 104 of the Evidence Act, 2011 does not require that payment of Certification fees must be stated on the face of the document itself. In this case, the fact that the assessment of fees did not appear on exhibits P1-84 does not mean that they were not paid for...."_
⚖️⚖️ *RIGHTS OF AIRLINE PASSENGERS IN AVIATION MATTERS AND THE COURT WITH THE REQUISITE JURISDICTION TO HEAR IT*
_By C.K. Anyanwu Esq_
*(Lawyer of Promise)*
*INTRODUCTION*
Basically speaking, in Nigeria, where the intricacies of refund policies and passenger rights become intertwined with the regulations established by the Nigerian Civil Aviation Authority, understanding the nuances of flight cancellations and compensations becomes essential. Not only does this knowledge equip passengers to manage their travel plans better, but it also ensures that their rights are duly protected in unexpected disruptions. Especially given the recent uptick in flight cancellation and delay news, staying informed on these matters has become more crucial than ever. This piece shall therefore address the rights of airline passengers and other factors ancillary to it.
*APPLICABLE LAWS REGULATING THE LIABILITY OF CARRIERS TO ITS PASSENGERS*
In the case of *OTOAKHIA v. AERO CONTRACTOR NIGERIA LTD(2014) LPELR-23319(CA),* the court spelt out the applicable laws that regulate the liability of carriers to its passengers .
"...there are laws regulating the liability of carriers to its passengers, whether arising from delayed or denied boarding or interactions in the course of preparing for or the actual conduct of flight operations.
It has been held that by reason of the provisions of S.315 of the 1999 Constitution, as amended, the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953, Vol. XL Laws of the Federation of Nigeria 1958, has domesticated the Warsaw Convention, 1929, and the Montreal Convention of 1999.
This is by virtue of S.48 of the Civil Aviation Act 2006. The Apex Court went on to say that, "It is a notorious fact that all air travelling tickets, whether domestic or international; contain notices alluding to the provisions of the Warsaw Convention, being referred to in this case as the 1953 Order.
The 1953 Order can certainly be taken judicial notice of under Section 74(1) (a) of the Evidence Act, laws of the Federation of Nigeria". Per Adekeye JSC: Harka Air Services (Nig) Limited v. Keazor Esq. (2011) LPELR-1353." Per HAMMA AKAWU BARKA, JCA (Pp 23 - 23 Paras B - F)
*WHEN THE LIABILITY OF AIRLINE WOULD ARISE OF RIGHT*
It is pertinent to note that an airline's liability will arise as a right in the following ways:
1)An injury is sustained aboard an aircraft or
2)Death arises from the course of the journey.
3) There is damage or loss of goods
4) There is damage or loss of baggage
5)Delayed flights or denied boarding
6) Interactions in the course of preparing for or during the actual conduct of a flight."
Per ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, JCA (Pp 93 - 93 Paras C - E)
*SEE:ANIBABA v. DANA AIRLINES LTD & ANOR(2022) LPELR-57827(CA)*
*RIGHTS OF AIRLINE PASSENGERS IN AVIATION MATTERS*
The principal legislation governing the rights of airline passengers in Nigeria is the Civil Aviation Act 2022[2] complimented by the Nigerian Civil Aviation Regulation 2015[3] with the principal governing body being the Nigerian Civil Aviation Authority.[4] Nigeria is also a signatory to the Montreal Convention, a major international air treaty governing air carriers’ liability for damages caused to its passengers, including death, as it is incorporated into section 55(2)of the Civil Aviation Act, 2022. Therefore, any person who suffers discomfort or injury arising from the action or inaction of an air carrier is entitled to seek damages.
Part 19 of the Nigerian Civil Aviation Regulation, Consumer Protection Regulationfurther provides for certain rights and responsibilities of passengers and airlines’ obligations to passengers. These rights can be broadly categorized into right to reimbursement and rerouting, right to accommodation and care, and financial compensation to air passengers. These rights cover instances where there is an incidence of Overbooking and passengers are denied boarding against their will, where a passenger’s scheduled flight is delayed and where a scheduled flight is cancelled.
The following rights which airline passengers are entitled to by virtue of the Civil Aviation Act and the Nigeria Civil Aviation Regulations will now be discussed:
*Rights to compensation in any case of aircraft accidents.*
Section 55(1)and (2) of the Civil Aviation Act provides that the Montreal Convention signed on the 28th day of May 1999 which provides unification of certain rules relating to international carriage by air shall have the force of law and apply to international and non-international carriage by air within Nigeria, irrespective of the nationality of the aircraft performing the carriage and shall subject to the provisions of the Civil Aviation Act 2022 govern the rights and liability of carriers, passengers, consignors, consignees and other persons within the contemplation of the modified Convention.
The implication as provided in section 55(3) isthatIn any case of aircraft accident resulting in death or injury of passengers, the airline operator or carrier shall make advance payments of Naira equivalent of at least 30,000 United States Dollars within 30 days from the date of such accident, to the natural person or such natural persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons and such advance payments shall not constitute recognition of liability and may be offset against any amount subsequently paid as damages by the carrier.
*Right to be compensated for flight delays and cancellations:*
Pursuant to Part 19 of the Nigerian Civil Aviation Regulation 2015, a passenger is entitled to compensation for any delay or cancellation of flight made. This right to compensation is dependent on the circumstances surrounding the delay or cancellation including whether the flight is an international or domestic flight and the duration and time of the flight. In cases of domestic flight delays, the airlines are mandated to provide the following to the passengers:
Reason for delay within 30 minutes of the scheduled departure time.
Free refreshment e.g. water and soft drink within the period.
Two telephone calls, text messages and email.
Immediate cash reimbursement of the full cost of the unutilized ticket at the purchase price.
Where the delay is between 10pm-4pm or at a time when the Airport is closed at the point of arrival or departure, hotel accommodation, transport between the Airport and place of accommodation must also be provided to the passengers.
In cases of international flight delays, the airline is obligated to provide the above listed as well as 30% of the passengers’ ticket price.
Where there is cancellation, the above must be provided in case of both international and domestic flight except,
Where the passenger has been informed of the cancellation 24 hours earlier where it is a domestic flight.
In a case of an international flight, the passengers must have been informed of the flight cancellation at least seven days earlier before the flight scheduled time.
Regardless of whether it is a domestic or international flight, passengers are also entitled to monetary refund. However, if the cancellation or delay was brought about by a supervening event outside of the carrier’s control, the carrier is not required to make up the difference.
*Right to be compensated for oversold tickets.*
Where an airline operator is faced with a situation of oversold tickets, the air carrier is under an obligation to compensate the volunteers, that is, people who willingly volunteer to board or join another air carrier after the practicable number of passengers are confirmed and fixed to a seat reservation with at least 25% of the fee or ticket price in case of domestic flight and 30% of the ticket price for international flight, they are also entitled to immediate cash reimbursement for domestic and international flight. Where it is an international flight, the full cost of unused ticket at the purchase for part or parts of journey not made must be reimbursed within 14 days.
*Right to be treated with dignity and respect:*
The Regulation provides that irrespective of your tribe, race and physical condition, every passenger must be treated with respect and equal priority. Especially priority must be given to persons with reduced mobility and anyone accompanying them, unaccompanied minors and families.
*Right to Accommodation and Care in Event of Delay, Cancellations, Denied Boarding or Downgrading.*
With respect to the right to accommodation and care and in the event of a delay, cancellation, denied boarding or downgrading, section 19(10) Nigerian Civil Aviation Regulation 2015 provides for the right to be cared for by the air carrier at the expense of the operating carrier. Care under this section means, free accommodation, transport between accommodation and hotel, free refreshment, meals, free phone call SMS, emails or fax messages. The regulation[7] further provides that where the delay is between 2 and 3 hours, the passengers shall be offered refreshments such as water, soft drinks, confectioneries, and snacks, all free of charge. In addition, passengers shall be offered free of charge two telephone calls, SMS or emails. Where the delay is beyond 3 hours, which period falls between 10 pm till 4 am or at a time when the airport is closed at the point of departure or final destination, the passengers have a right to be accommodated free of charge in addition to being transported to and from the airport.
Financial compensation to air passengers is also a remedy available in the event of delay of carriage or breach of carriage. In the case of delay of domestic flight in Nigeria, there is no right to monetary compensation under the Nigerian Civil Aviation Regulation. However, if the delay is in respect of international flight, and the delay is within the period of 2-4 hours, the passenger is entitled to monetary compensation in the value of 30% of the cost of the ticket.
*RIGHT TO COMPENSATION FOR DELAYED, LOST AND DAMAGED BAGGAGE*
Nigerian Civil Aviation Regulation 2015 provides in part 19 that an airline consumer is entitled to have his/her baggage carried on the same flight he/she boards subject to the considerations of safety, security, or any other legal and valid cause.[8]
In a situation where such baggage has been off-loaded for operational, safety, or security reasons, the NCA regulation further provides that the air carrier shall inform the passenger at the soonest practicable time and in such manner that the passenger will readily know of the off-loading. Where the passenger’s baggage has been off-loaded, the air carrier is obliged to notify the passenger, even if it had already announced that the baggage would be on the next flight.
The air carrier is also under an obligation to tender an amount of five thousand Naira in cases of domestic flights and one hundred and fifty thousand dollars in cases of international flight to the passenger as compensation for the inconvenience suffered.
Should such baggage, whether carried on the same or a later flight, be lost or suffer any damage attributable to the air carrier, the passenger shall be compensated in accordance with the provisions of the Nigeria Civil Aviation Act.
For compensation purposes, a passenger’s baggage is presumed to have been permanently and totally lost, if within a period of 7 days for domestic flights and 21 days, for International flights, counted from the time the passenger or consignee should have received same, the baggage is not delivered to the said passenger or consignee. Refund of checked baggage fees will also apply, if the baggage is not delivered to the passenger within twenty-four (24) hours from the arrival of flight.
Other rights of Airline consumers under Nigerian law includes:
The right to full value for money paid.
The right to seek redress for all irregularities during a flight.
The right to timely feedback in respect of complaints lodged with service providers.
The right to be fully informed about flight status.
*COURT WITH REQUISITE JURISDICTION TO ENTERTAIN AVIATION MATTERS*
In this regard, there's need to distinguish between when a matter falls under the simple contract which the State High Court has jurisdiction to entertain and when it falls under the aviation matters of which the Federal High Court has the jurisdiction to entertain.
Going forward, in the case of *DELTA AIRLINES v. JOSEF & ANOR(2019) LPELR-46921(CA),* the court held thus:
Now to the real issue, which is, whether the lower Court was right in assuming jurisdiction over this matter.
To arrive at a decision, it will not be out of place to look at the reliefs before the lower Court.
The Claimant's claim is for: i. A Declaration that the Claimant is entitled to the payment of N25,000,000 (Twenty-five Million Naira) by the Defendants for the breach of contract of carriage by air of Josef Shima Kohol on 7th August 2011 with his ticket No. 0-0062143061667-1 ii.
A Declaration that the Claimant was indeed ill-treated, defamed and humiliated by the officials of the 1st Defendant at the 1st Defendant's Check-in Counter at Atlanta, USA on the 7th August 2011.
iii. An Order directing the Defendants to pay the Claimant the sum N25,000,000 (Twenty-five Million Naira) at the interest rate of 21% from 8th of August, 2011.
iv. An Order directing the Defendants to pay the Claimant the sum N25,000,000 (Twenty-five Million) for the ill-treatment, defamation and humiliation suffered by the Claimant at the 1st Defendant's Check-in Counter at Atlanta, USA on the 7th August 2011.
v. An Order directing the Defendants to pay the Claimant the sum of N10,000,000 (Ten Million Naira) being the cost of litigation.
vi. And for such further orders as this Honourable Court may deem fit to make in the circumstances.
The issue before the lower Court is clearly breach of contract of carriage by Air.
The next friend of the 1st Respondent who happens to be his mother purchased tickets in Lagos for a family vacation to Atlanta in the United States.
It was a return ticket. The ticket No for the 1st Respondent on that trip is 0-0062143061667.
The ticket is for Lagos- Atlanta- Lagos.
The 1st Respondent successfully used the first leg, which is the Lagos- Atlanta leg.
When he was about to use the Atlanta-Lagos leg of the ticket, he was not checked in on the ground that the voucher used to buy the ticket was stolen.
In the circumstance, he was denied checking in and using that ticket on that aircraft.
Based on this, the next friend had to buy another ticket for the 1st Respondent to use to return home.
That is ticket N0- 0-0062143213234-4. He travelled with that ticket and not the earlier ticket that is ticket No- 00621430361667-1.
For that trip that is the Atlanta-Lagos leg of the trip, there was no connection between that ticket No and the aircraft that he boarded.
This is not in dispute. In the circumstance, can the action based on those facts be said to be aviation related for which only the Federal High Court has jurisdiction or a matter dealing with simple contract which the State High Court has jurisdiction?
This is what this judgment will deal with.
It is not in dispute that matters that involve simple contracts are within the jurisdiction of the State High Court no matter whether they are matters dealing with issues in Section 251(1) of the Constitution of Nigeria. See; Aderinboye vs. A.G. Fed. & Anor (2016) LPELR-41638 (CA); Integrated Timber & Plywood Products Ltd vs. UBN Plc (2006) SC (Pt. II) 52; Ikpekpe vs. Warri Refinery & Petrochemical co Ltd & Anor (2018) LPELR-44471 (SC).
In TSKJ (Nig.) Ltd vs. Otochem (Nig.) Ltd (2018) LPELR-44294 (SC),the apex Court per Muhammed, JSC at pages 14-16 held: "Jurisdiction of any State High Court and the Federal High Court is donated by the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
In relation to a State High Court, Section 272 of the Constitution of the Federal Republic of Nigeria provides: "Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue.
Thus, a State High Court has a very wide civil jurisdiction on almost all civil matters, except where it has been limited/restricted by the Constitution or any other statute.
On the other hand, Section 251 of the same Constitution provided for the jurisdiction of the Federal High Court including admiralty matters.
It states: "251(1) Not withstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters- (g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluent and on such other inland water way as may be designated by any enactment to be an international waterway, all Federal Ports, (including the Constitution and powers of the port, authorities for Federal ports) and carriage by sea."
His Lordship went on to hold in the above case: "There is a finding by the trial Court which was affirmed by the Court below that the transaction between the parties is that of houseboat hire.
This, in my view, is a simple contract and not an admiralty or maritime matter.
By the constitutional provisions of a State High Court, it is the Port Harcourt High Court and not the Federal High Court that has jurisdiction over this simple contractual engagement.
This is because, careful observation and literal construction of the averments of the Statement of Claim is to the effect that the action filed before the trial Court is for the recovery of accrued and unpaid hire rentals for a houseboat let to the appellant by the respondent and damages for breach of the contract.
The fact that the Admiralty Jurisdiction Act, 1991, Cap. A5 of the Laws of the Federation of Nigeria, 2004, defines a ship (Section 26 thereof) as a vessel of any kind used or constructed for use in navigation by water, however it is propelled or moved and includes a large, lighter or other floating vessel, cannot, in my view, convert an agreement for hire of houseboat into an admiralty agreement.
The mere fact that a ship is involved in a simple contract does not automatically make that simple contract a subject for jurisdiction in admiralty matters.
To hold to that supposition will be ridiculous. See: Texaco Overseas Nigeria Petroleum Company Unlimited vs. Pedmar Nigeria Ltd. (2002) 7 SC (Pt.11) 222; American International Insurance Co. Ltd. vs. Ceekay Traders Ltd. (1981) 5 SC 81. This case of a simple contract of debt recovery is, I hold, within the civil jurisdiction of the Rivers State High Court and it properly assumed jurisdiction on the matter."
The above case shows clearly that the mere fact that contract involved houseboat does not take it away from the ream of a simple contract into a contract on admiralty.
In looking at a contract, a Court will interpret same from the substantial point of view.
A simple contract which is within the competence of the State High Court under Section 227 of the 1999 Constitution will not graduate into the field of the Federal High Court simply by adding one of the items in Section 251(1) of the Constitution.
What I am laboring to say here as shown in the case above is that a simple contract does not become admiralty or aviation matter on the premise that the contract deals with admiralty or aviation matter.
Permit this analogy, the fact that a Yoruba man bears an Ibo name does not make him an Ibo man. This is clear and simple.
The appendage of aviation in a simple contract does not necessarily make it an aviation matter.
To qualify as an aviation matter, the contract must lead to carriage in an aircraft.
This means that the passenger or goods must have been carried in the aircraft.
This means the good or the passenger must have been in the custody of the aircraft.
In the case of a passenger, it must have gone beyond checking in at the counter and the passenger must have embarked on the journey by entering the aircraft.
It is at this stage, that anything done to the passenger which is a breach of the contract will be an aviation matter for which it is only the Federal High Court that has jurisdiction.
Any breach of any contract which is done before the actual carriage of the passenger by way of embarkment into the aircraft will amount to simple breach of contract which the State High Court has jurisdiction and definitely not the Federal High Court because in such a situation it does not qualify as a matter relating or connected to aviation or the aircraft.
A person is actually in a contract of carriage when he has been carried by the aircraft.
There is no carriage when all that has happened is a passenger being checked in at the checking in counter.
After that if he has luggage, the luggage is taking in at the counter. At that stage, the luggage is now under the custody of the airline.
Should there be a breach of contract as it relates to the luggage, the airline will be liable even if the luggage has not been taken into the aircraft.
That is not the same with the passenger. At the check in counter, whatever breaches will be seen as a breach of a simple contract having nothing to do with aviation or the aircraft.
After checking in, anything can still happen between then and the time of embarkment.
The flight can be delayed or cancelled.
The passenger can as well change his mind. If any of these happen and there is a breach, the matter can be properly determined in the State High Court and not the Federal High Court as carriage by air as not taking place.
To bring the matter under the provisions of Section 251 (1) (k) of the 1999 Constitution of the Federal Republic of Nigeria, the passenger must have embarked on the aircraft.
Anything less, will not bring the action within the jurisdiction of the Federal High Court.
The Appellant in his brief, referred to several cases to buttress the point that the lower Court was wrong in assuming jurisdiction.
I have referred to those cases above. One point that must be made is that in all those cases the passenger had already boarded the aircraft and therefore any breach can clearly brings the matter within the jurisdiction of the Federal High Court.
This is what this Court held in Otoakhia vs. Aero Contractor Nig Ltd (2014) LPELR-23319 (CA). His Court held thus: "The Appellant's case is that the Respondent breached the contract of carriage which he had with it, to be carried by air from Lagos to Benin.
That instead of taking him to Benin, the Respondent took him to Warri.
It seems as clear as crystal that the Appellant's claim is in respect of carriage of passengers by air in respect of which exclusive jurisdiction has been vested in the Federal High Court by the Section 2 (7) (1) (1) of the Federal High Court (Amendment) Decree [now Act] No. 60 of 1991; a jurisdiction which is construed to include all issues relating to, arising from or ancillary thereto, by virtue of the provisions of Section 2 (7) (3) of the said Decree [now Act] No. 60 of 1991." I had reviewed the facts of this case earlier.
The breach in Atlanta took place at the checking in counter.
The 1st Respondent was denied the use of his ticket No 00062143061667-1 to board the aircraft.
On the purchase of the ticket with that No in Lagos, there is a contractual relationship between the airline, the Appellant and the 1st Respondent to air lift him between Lagos and Atlanta and then back to Lagos.
The contract document is the ticket. If there is any complain of breach of contract on refusal to carry the 1st Respondent on that ticket it will be a simple contract of carriage for which the State High Court has jurisdiction.
Generally, it would appear that having not boarded the aircraft in Atlanta this is not a matter for the Federal High Court.
This should be the general position but can there be a game changer in this matter since the 1st Respondent boarded the Lagos/Atlanta aircraft which successfully took him from Lagos to Atlanta.
This is not in dispute that the first leg of the journey had no problem. Can this make a difference on the issue of jurisdiction between the State High Court and Federal High Court.
Let me take an excursion to some cases in this light. In Harka Air Services (Nig.) Ltd vs. Keazor (2011) 13 NWLR (Pt. 1264) 320, (2011) LPELR-1353 (SC), the apex Court per Adekeye JSC at page 30 held as follows: "By virtue of Article 17 of the Warsaw Convention, the Carrier is liable for the damages sustained in the event of the death or wounding of a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
To establish liability, the claimant must prove that: (a) The passenger must have been wounded or suffered bodily injury (b) The injury must have arisen from the accident (c) The accident must have occurred on board the aircraft or during the course of embarking or disembarking."
This seems to be the position of the Court in KLM Royal Dutch Airlines vs. Taher (2014) 3 NWLR (Pt. 1393) 137 @ 193-194 where it was held: "It is clear by Section 7 (1) of the Federal High Court Act that carriage of passengers and goods by air are within the exclusive jurisdiction of the Federal High Court, therefore the jurisdiction of the Federal High Court extends to all aspects of aviation and carriage of passengers and goods by air.
In the instant case, the respondent had not boarded the aircraft when the harm complained of took place.
The harm was not connected with the aircraft itself, as embarkation had not started, the carriage by aircraft had not begun, and therefore, it is completely outside the parameter of carriage by air. Even though the contract had been entered into, the ex*****on of the same had not begun. If the respondent had embarked on the aircraft or boarded same that is where the Federal High Court would have come in."
The above position was pronounced upon by this Court in KLM Royal Dutch Airline vs. Idehen(2017) LPELR- 43575 (CA).
This Court per Nimpar, JCA in the said case went on to make a distinction between a one way ticket and a return ticket in determining the issue of the jurisdiction on a matter of aviation.
This Court held that once the passenger has embarked on the first leg of the return trip, problem arising from the second leg even if it has no connection with an aircraft, the appropriate Court to assume jurisdiction is the Federal High Court.
I will quote in great length the decision of this Court. Nimpar, JCA at pages 13-19 of the judgment thus: "The 1999 Constitution donated jurisdiction to the Federal High Court in areas circumscribed therein, by Section 251(1) which provides as follows: "Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters..."
The section goes on to set out in Sub-paragraphs (a) - (r) the matters in respect of which such exclusive jurisdiction is conferred on the Federal High Court. Subparagraph (k) deals with aviation and safety of aircraft.
The Federal High Court Act provides subject matter list and by Section 7(1) (k) it states that aviation and safety of aircraft comes under the Federal High Court's jurisdiction.
The question to ask is whether the contract allegedly breached is one for carriage by air. The provision is quite clear and straight forward and it does not include a mere contract relating to carriage by air if carriage by air has not commenced at all.
It is only when the cause of action is intricately connected with being on an aircraft and injuries or any event untoward occurs or where goods are in an aircraft and something happens, that gives a claimant a cause of action under the Federal High Court.
But here the issue is beyond the nature of the ticket because the contract of carriage by air had commenced the first leg concluded.
It was a two way ticket and the first carriage had taken place. What became an issue was the return leg of a two way contract.
The issue is whether the ticket was a special ticket with a validity period travel restrictions or an open ticket with its attendant options of date change.
That cannot alter the two way nature of the contract and as conceded to by parties, the first leg was fulfilled without any hitch. If the contract had not been part performed, then the claim will come under the State High Court.
The situation here is not too different from the facts in ALHAJI ADEBAYO AZEEZ vs. LUFTHANSA GERMAN AIRLINE (2014) LPELR-22416 where the breach was in the course of a journey and the ticket was activated but the claimant broke the seamless journey midway.
That was in the course of a return journey. The claim of the Respondent has something to do with an aircraft because he had been in the aircraft going and his effort to return through the Appellant's aircraft was aborted.
The issue should have been one for the Respondent to pay surcharge fees for a change of the return date mentioned in the ticket but instead of a surcharge the return ticket was cancelled without an option to revalidate.
It is therefore obvious that the contract was part performed and has transcended a simple contract at that stage and therefore jurisdiction must fall under the Federal High Court and not the State High Court.
The Respondent had entered the aircraft belonging to the Appellant but his contract to reenter for return was denied". His lordship continues in the judgment as follows: "I agree with the Respondent that the cancellation of the flight ticket and imposition of surcharge is an aviation matter under the purview of the Montreal Convention and Civil Aviation Act.
The Montreal Convention and Civil Aviation Act has nothing to do with matters of simple contract but where a contract for carriage by air is part performed and the party had entered the aircraft such as this and flown to the United States, the Appellant by virtue of the ticket, is duty bound to return him back to Lagos since the ticket was a return ticket.
Gladly, the Respondent had spelt out the scope of the Montreal Convention 1999 to wit: 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 purposes of this Convention, the expression "international carriage" means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transshipment are situated either within the territories of two states parties, or within the territory of a single state party if there is an agreed stopping place within the territory of another State, even if that state is not a state party.
Carriage between two points within the territory of a single state party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.
It is clear therefore that the convention applies to instances covering the period from the place of departure to the place of destination upon dis-embarkment and return.
This is different from a NO SHOW situation where the passenger simply does not appear to be carried.
The Respondent was willing to appear but on a date other than on the ticket and had communicated so to the Appellant via Exhibit 10 and 11.
I therefore agree that the issue can come under aviation matters to be decided upon by the Federal High Court.
For emphasis, let me restate that the journey from Lagos to Boston was one leg of the contract which had been finalized, concluded and closed.
The ticket was Lagos-Boston-Lagos, the different dates notwithstanding, it was one return journey.
The return back to Lagos did not amount to a fresh contract; the two legs are intricately related and subsumed into one contract.
In the case of KLM ROYAL DUTCH AIRLINES vs. TAHER (2014) 3 NWLR (Pt. 1393) 137, the Court held thus: "For proper elucidation of this issue, it is necessary to appreciate the meaning ascribed to the terms "aviation" and "carriage". Aviation has been defined as "(1) the operation of aircraft, (2) the design, development, production or use of aircraft.
The word "carriage" is defined in Oxford Advanced Learner's Dictionary to include the art of transporting of goods etc."
The Webster's Dictionary also described it as the act or cost of carrying, it includes "the act or process of transporting or carriage", or "the act of conveying".
Therefore, for there to be a carriage of passenger by air, the passenger must have entered or boarded the aircraft and be in the process of being carried or conveyed.
It is elementary that if there has been no act of carrying or conveying someone in an aircraft, the person cannot definitely say there has been a carriage.
The passenger must have connection with an "aircraft". In the Nigerian context, the word "embarkation" does not include any period when the passenger still has to go through a check or control which results in refusal of entry.
It means the boarding of an aircraft for the purpose of commencing a flight. So if the period of carriage commences from the time of embarkation of person on board the aircraft, it follows that any period preceding the same shall not be counted for carriage of person by air." Considering the fact that the contract the Respondent had with the Appellant was a return ticket and not a one way ticket, the cancellation midway before the return to final destination and was never revalidated, the issue of contract of carriage under the Aviation laws can apply.
I resolve this issue against the Appellant to hold that in the peculiar facts of this appeal, the Federal High Court had jurisdiction to hear the matter and give judgment."
In the same judgment, Obaseki-Adejumo, JCA at page 36-37 held a similar view as follows: "The contract on Air Carriage is fee-based actual adhesion contract.
When a passenger has purchased a ticket, he gives his consent to the terms, conditions and suggested route hereof. Likewise the airline is bound by the relevant terms and conditions applicable to it.
The contract is certified by the passenger's ticket and baggage check, of which these terms and notifications are a part.
Thus, where as in the instant case, a passenger purchase a return (to-way) ticket and the first leg of the carriage had taken, before dispute arose as to the return (second) of the journey, it will clearly be a manifest misapprehension of the position of the law to say that the contract between the parties is a mere simple contract. Far from it!
The twin nature of the obligations arising under the contract vis--vis the dispute which arose from the second leg of the contract of carriage evidently brings this case within the exclusive jurisdiction of the Federal High Court, with the applicability of the Montreal Convention and Civil Aviation Act."
The issue here therefore is whether a return ticket is a single contract or each leg can be said to constitute a new contract.
This is a very fundamental issue to consider whether the lower Court has jurisdiction.
If I hold that the return ticket is a single contract, then, the Court with jurisdiction in this matter will be the Federal High Court in which case the appeal will be allowed.
This is because; the embarkment in Lagos on ticket no 00062143061667-1 will suffice to bring this action under the Federal High Court as that will satisfy the requirement of embarkment as there is a part performance.
On the other hand, if I hold that the return leg from Atlanta to Lagos constitutes a different contract, then the appeal will fail as there was no embarkment from the airport in Atlanta. Ticket no: 0-0062143061667-1 was bought in Lagos as a return ticket.
It was bought at the same time. I can take judicial notice of the fact that, since it is one ticket, the ticket no is the same for both legs. The same ticket covers both legs of the trip and therefore it is a single contract which is not severable.
The Booking Reference of a ticket in a trip contains the profile of the passenger which has the name of the passenger and the itinerary of the passenger.
The booking reference is the first step towards booking a ticket and when the ticket is to be issued, the booking reference will be imputed into the system which will be used to generate the ticket.
The point I am labouring to make is that a return ticket once issued has the same booking reference and ticket no for both legs of the journey.
The implication of this is that the ticket is a single contract between the parties. The 1st Respondent on boarding the flight in Lagos to Atlanta has commenced the performance of the contract and indeed the condition of the contract has been put into action immediately the 1st Respondent boarded the flight in Lagos.
In the circumstance, the 1st Respondent cannot be said not to have embarked on the flight on ticket No. 0-0062143061667-1.
If the denial was in Lagos, then the action cannot be termed an aviation matter as there is no connection to the aircraft.
There is connection to the aircraft covered by that ticket immediately the 1st Respondent boarded the flight in Lagos for Atlanta.
The first leg having no problem, the denial in boarding the second leg cannot take the action outside the scope of aviation matter. In driving home this point, the case of Alhaji Adebayo Azzez vs. Lufthansa German Airline (2014) LPELR-22416 is quite instructive.
This Court per Iyizoba, JCA at page 10-11 held: "Conjunction ticket is defined in Article 1 of the Lufthansa Conditions of Carriage (Exhibit H) as: "...a ticket issued to a passenger in conjunction with another ticket, which together constitute a single contract of carriage... I agree with, conjunction tickets are serially numbered, issued to the same purchaser at the same time, with same class, and every segment constitutes a single part of one complete trip.
In the same vein, the conjunction ticket must unequivocally refer to same passenger." A conjunction ticket can constitute a single contract if both tickets are in respect of the same transaction, same customer, same date of purchase, same route, date and timing of flight and in fact the same class.
The ticket under reference here is not a conjunction ticket but one single ticket.
This makes it a single contract. Since there was embarkment in the first leg of the journey from Lagos to Atlanta, this makes this matter one within the jurisdiction of the Federal High Court.
The lower Court being the Lagos High Court has no jurisdiction in this matter." Per EBIOWEI TOBI, JCA (Pp 9 - 32 Paras F - F)
*BURDEN OF PROOF IN RELATION TO AVIATION MATTERS*
By virtue of section 137, Evidence Act, in civil cases, there is the general burden of proof on the plaintiff to prove his claim or relief before a court. There is yet another kind of burden which is dictated by the nature of the pleadings. This is known as the burden of proof on the pleadings. Unlike the general burden, the burden of proof on the pleadings rests on any party, whether plaintiff or the defendant, who substantially asserts the affirmative of the issue. This category of burden is fixed at the beginning of the trial by the state of the pleadings. It remains throughout the trial; exactly where the pleadings place it.
*See: Olaniyan v. Oyewole (2011) 14 NWLR (Pt. 1268) 445 (CA)*
Thus, in *RUFAI v. ARIK AIR LTD(2019) LPELR-48009(CA),* the court held thus:
"As can easily be observed from the pleadings by the parties, the only primary fact which is in dispute between them on which issue was joined was on the reason or cause of the delay in the departure of the Flight in question from Lagos to its destination in Port Harcourt, at the scheduled time of 7:30am.
All the other facts in the above avernments are not in dispute, not in issue and so require no proof from the Appellant.
Of particular material, among those facts about which there is no dispute between the parties in the pleadings above, is the fact that the flight in question was delayed from its scheduled time of 7:30am and did not depart Lagos until 8:30am on the journey to Port Harcourt as averred to in paragraph 8 of the Statement of Claim which specific time was not specifically, directly and frontally denied in the general denial of the paragraph in paragraph 7 of the Statement of Defence by the Respondent.
It is therefore deemed accepted and conceded to by the Respondent on the authority of, inter alia, IMNL v. Nwachukwu (2000) 14 NWLR (688) 599, NNPC v. Sele (2004) 5 NWLR (866) 379, Osayande v. Etuk (2008) 1 NWLR (1068) 211, CBN v. Dinnah v. Dinnah (2010) 17 NWLR (1221) 125.
Since the delay of the Flight was conceded to by the Respondent who asserted, positively in paragraph 4 of the Statement of Defence that:-
"4. The Defendant, in line with the above, received an adverse weather report from the control tower on the Lagos Port Harcourt air space route and advised that Flight No. W3 511 scheduled for Lagos-Port Harcourt on 6th August, 2008 be delayed to enable the weather condition be conducive for a safe and comfortable flight;" the burden of proving the reason or cause of the delay of the Flight, shifted to the Respondent to adduce the requisite evidence of the quality and quantity required by the law to, on the balance of probabilities or preponderance of evidence, is that it was due to the fact of adverse weather asserted by it in the pleadings.
The law is known that the burden, known as onus, of proof in civil proceedings or cases though usually and initially placed on the claimant who desires a Court of law to enter judgment in his favour on the basis of the existence of fact/s he positively asserted in his pleadings, is not static but may shift in the course of the proceedings to be determined by the state of the pleadings at given stages.
This is the evidential burden of proof which is fixed by the pleadings and to be settled as an issue or question of law and remains where the pleadings fixed it throughout the proceeding. ?
Recently, the Supreme Court per Peter-Odili, JSC restated the position in the case of Chemiron International Limited v. Stabilini Visinoni Limited (2018) ALLFWLR (965) 48 @ 70-1 as follows:- " --- the law is trite as backed by Section 131 of the Evidence Act 2011 that he who asserts must prove.
That provisions is supported by the fact that the burden of proof in civil cases in not static as it shifts from one party to another.
Firstly, the burden of proving the existence or non-existence of fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may come up from the pleadings.
Therefore, if the party adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party, against whom the judgement would be given if no more evidence were adduced and so on successively until all the issues in the pleadings have been dealt with." See also Egharevba v. Osagie (2009) 18 NWLR (1175) 299, Lewis Per MOHAMMED LAWAL GARBA, JCA (Pp 21 - 26 Paras E - B)
*INSTANCES WHEN A CARRIER'S LIABILITY WOULD NOT BE EXCLUDED OR LIMITED*
In *EMIRATE AIRLINE v. AFORKA & ANOR(2014) LPELR-22686(CA);* the court explained the liability of a carrier.
In "Article 18 (1) of the Montreal Convention provides that the carrier is liable for damage sustained in the event of the destruction or loss of or damage to cargo.
Article 18 (3) provides that the carriage by air within the meaning of paragraph (1) of Article 18 comprise the period during which the cargo is in the charge of the carrier.
The fact that the cargo has not been air lifted is consequently of no moment.
Once the carrier has taken control of the cargo and issued the airway bill, any loss from then on is covered by the Convention and the limitation of liability clause subject to the stated exceptions as provided in the Convention.
Article 22 provides for the limits of liability in relation to delay, baggage and cargo loss.
Paragraph 1 limits the liability of the carrier to each passenger in respect of damage caused by delay to 4150 Special Drawing Rights.
By Paragraph 2 the liability of the carrier in the case of destruction, loss, damage or delay of baggage is limited to 1000 Special Drawing Right to each passenger.
Paragraph 3 deals with limitation of liability in the case of destruction, loss, damage or delay in the carriage of cargo already set out above. 17 Special Drawing Rights per kilogram. Paragraph 5 of Article 22 provides:
"The foregoing provisions of Paragraph 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that in the case of such act or omission of a servant or agent, it is also proved that such servants or agents was acting within the scope of its employment".
It is important and noteworthy that the above paragraph excluded Paragraph 3 which deals with liability in the case of carriage of cargo.
The clear intention to exclude carriage of cargo is confirmed by Article 30 which deals with actions brought against a servant or agent of the carrier.
They are also entitled to the limits of liability under the Convention just as the carrier. But Paragraph 3 of Article 30 provides: "Save in respect of the carriage of cargo, the provisions of Paragraph 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage recklessly and with knowledge that damage would probably result."
By these provisions negligence or willful misconduct seem to play no role in the case of carriage of cargo under the Montreal Convention.
The learned trial Judge was consequently wrong in holding that there was no limitation of liability because the appellant was unable to rebut the presumption of negligence or the doctrine of res ipsa loquitor. ?
But even assuming but without conceding that negligence has a role to play, the case of Cameroon Airlines v. Jumai Abdul-Kareem (2003) 11 NWLR (Pt. 830) I throws more light on the point.
There it was held that to be able to award damages at large, it is not enough to show that the damage was done intentionally or recklessly, it must also be shown that the carrier had knowledge that damage would probably result.
This obviously is a tall order. The case is in my humble opinion authority for the view that the claimant cannot hide under the doctrine of res ipsa loquitor.
He must plead and prove the act that amounted to negligence or willful misconduct and must go further to plead and prove knowledge that damage would result.
The burden is squarely on the Claimant to prove negligence and not on the carrier to rebut negligence.
The case of Cameroon Airlines v. Otutuizu (2011) 8 WRN 1 or (2011) 4 NWLR (Pt. 1238) 512 is a good example where the passenger was able to prove willful misconduct on the part of the carrier entitling him to damages outside the limit imposed by the convention.
At pages 539 - 540 F-A, 540 C of the NWLR, Rhodes Vivour, J.S.C. observed: "It is well settled that the Appellant was in breach of contract as principal and agent in not flying the respondent to Manzini, Swaziland, (exhibits A and B).
It is reasonably foreseeable that a passenger (the respondent) arriving in South Africa without a transit visa would be arrested, with grave consequences for the passenger.
Consequently, the act of the Appellant flying the respondent to south Africa with no justifiable reason for doing so and knowing fully well that the respondent did not have a transit visa, apart from being a clear breach of the agreed route, amounts to a negligent breach of contract.
A willful misconduct in the extreme. By the provision of Article 25 of the Convention a carrier (the appellant) loses its entitlement to rely on the limit set on its liability by Article 22(1) where a brief case containing $20,000 and valuables of the respondent is taken away (and never returned) by South African Immigration officials as a result of the willful act by the appellant, in flying the respondent to South Africa, when it knew that the respondent did not have South African transit visa.
When the carrier commits willful misconduct, the respondent is entitled to more damages than the limit set in Article 22 of the Convention. Oshevire v. British Caledonian Airways Ltd (1990) 7 NWLR (Pt. 163) 507...." In Harka Air Services (Nig) Ltd v. Keazor (2011) 13 NWLR (Pt. 1264) 320 , the carrier was unable to avail itself of the provisions of the Convention limiting liability because it was found
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