King James Nkum (PhD, BL), Legal Research Consultant/Legal Adviser Triune Biblical University, USA, [email protected], +2348065319125
Air passenger rights imposes liabilities on airline operators under international air law. The Nigerian Civil Aviation Act has also made special provisions for liability such as trespass, nuisance and patents among other liabilities of the carrier.
Section 48 of the Act provides that the provisions contained in the Montreal Convention 1999 set out in the Second Schedule of the Act and as 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 to which those rules apply irrespective of the nationality of the aircraft performing the carriage, and shall, subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons. The Act further proclaims that the Montreal Convention shall from commencement of the Act have force of law and apply to non‐international carriage by air within Nigeria, irrespective of the nationality of the aircraft performing the carriage and shall govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons. This Article seeks to examine the various liabilities of the carrier under Nigerian and international air law.
1.1. Liability for Death or Injury
Similar to what obtains in other parts of the world, airline operators in Nigeria are liable for damages caused to air passengers. The Nigerian Civil Aviation Act specifically provides that in any case of aircraft accident resulting in death or injury of passengers the carrier shall make advance payments of at least US $30,000.00 within 30 days from the date of such accident. Note that the figure mentioned here is the least that the law envisages as it could be more. The prevailing circumstances such as inflation and other surrounding issues could form the basis for the court to award a higher amount to a victim. Moreover, the 30 days period stated above is a legal stipulation which cannot be extended. Of course, the number of days refers strictly to calendar days including weekends.
The payment is to be made to the natural person or such natural persons who are entitled to claim compensation. It is intended to help the recipients meet the immediate economic needs of the victim. It is important to note that such advance payments shall not constitute recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier.
1.2. Action in Trespass, Nuisance and Damage from Aircraft
An airline operator’s tortuous liability has been established by the Act to include cases of trespass, nuisance and damage from aircraft. Accordingly, Section 49 (2) provides that:
Where injury, loss or damage is caused to any person or property on land or water by an article or a person in or falling from an aircraft while in flight, taking off or landing, then, without prejudice to the law relating to contributory negligence damages in respect of the injury, loss or damage shall be recoverable without proof of negligence or intention or any other cause of action, as if the injury, loss or damage had been caused by the willful act, neglect or default of the owner of the aircraft: Provided that where the injury, loss or damage is caused in circumstances in which‐
- damages are recoverable from the owner in respect of the injury, loss or damage by virtue only of the foregoing provisions of this subsection; and
- a legal liability exists in some person other than the owner to pay damages in respect of the injury, loss or damage, the owner shall be entitled to be indemnified by that other person against any claim in respect of the said injury, loss or damage.
The Act however provides negatively to the effect that no action shall lie in respect of trespass or nuisance by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case as reasonable, or the ordinary incidents of such flight. This exemption only applies so long as the flight over such property duly complies with any regulations in force made in respect thereof
Finally, Section 50-52 deals with the issue of patent infringement and claim with respect to aircrafts and parts thereof.
1.3. Action for Damages
The main object of an award of damages is to compensate the plaintiff for the harm done to him or secondarily to punish the defendant for his conduct in inflicting that harm
. The rationale behind the compensatory theory for the award of damages is found in the maxim restitutio in integrum
, which means to restore the injured party to the position he or she was in prior to the injury
. The jurisdiction of court as regards action for damages is based on the general legal position as provided by the Montreal Convention to the effect that such an action must be brought at the option of the Claimant, either:
- Before the court of the domicile of the carrier; or
- Its principal place of business; or
- Where it has no place of business through which the contract has been made or before the court at the place of destination.
In cases of damage resulting from the death or injury of a passenger, an action may be brought before:
- One of the three courts mentioned in above; or
- In the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.
As earlier stated, claims for damages under the Montreal Convention can only be made in the Federal High Court which in Nigeria has exclusive jurisdiction over Aviation related causes of action
. The claim for damages was the subject matter in the recent case of British Airways v. P.O. Atoyebi
. The facts of the case is that the respondent, a Senior Advocate of Nigeria, was a first class passenger on the appellant’s flight from London Heathrow Airport on Sunday 7th May 2000, arriving in Lagos in the early hours of Monday 8th May 2000. At the boarding gate in London, on 7th May 2000, the respondent was informed by a staff member of the appellant that one of the pieces of hand baggage he intended to take onto the flight was too bulky and in excess of the weight allowed for hand luggage. He relinquished the bag to the appellant’s staff to be checked into the aircraft’s hold. It was duly tagged and the respondent was given the appropriate baggage tag. Upon his arrival in Lagos in the morning of 8th May, his bag did not arrive with the flight. He returned to the airport twice a day between 8th and 10th May but his bag did not arrive, even though he had been informed that the bag had been traced at the airport in London and would be sent to Lagos without delay. Notwithstanding the fact that he gave written authority to his personal assistant in London to collect the bag, the appellant refused to release the bag to him and insisted that it would be brought to Lagos. It failed to do so.
Having declined to state the contents of the bag because it contained valuables and cash, when it failed to arrive, he was advised to travel back to London to collect it personally. On 10th May, 2000 the respondent travelled back to London with a business class ticket to collect his bag. He was met on arrival by a member of staff of the plaintiff who took him to a large room containing many unshipped bags belonging to Nigerians. He found his bag intact. As a result of the actions of the appellant, the respondent wrote a letter to it dated 11/5/2000, seeking compensation for the manner in which he was treated and the resultant losses incurred by him. The appellant eventually responded by a letter dated 25/8/2000 wherein it offered the respondent the sum of £508.48. Being utterly dissatisfied with the offer, he instituted an action against the appellant before the Federal High Court Lagos (the trial court) by a writ of summons filed on 6/5/2002. By paragraph 22 of his Further Amended Statement of Claim dated 13/7/2005 he claimed that by reason of the Defendant’s incompetence, deliberate act and/or act of negligence the plaintiff has been put to a lot of financial losses, travel stresses, loss of professional time, etc. The particulars of loses were calculated as totaling US$ 5,450 and £107,013 respectively. The plaintiff claimed these sums together with interests at the rate of 25% per annum from 8 May, 2000 until judgment and costs.
At the trial the respondent testified on his own behalf and did not call any other witness. The appellant called one witness. It denied liability and contended that the respondent’s claims are not cognizable under the provisions of the Warsaw Convention. At the conclusion of trial judgment was entered in favour of the respondent.
An appeal to the Court of Appeal, Lagos Division (the lower court) was unsuccessful. Still dissatisfied the appellant has appealed to this court vide its Amended Notice of Appeal filed on 31/12/2010 pursuant to an order of this court granted the same day. The Amended Notice of Appeal contains 2 grounds of appeal. The two grounds shorn of their particulars are that the learned Justices of the Court of Appeal erred in law when they agreed with and thus upheld the decision of the trial court on assessment of damages and thereby dismissed the appeal of the appellant. The second ground was that the Learned Justices of the Court of Appeal erred in law when they failed to pronounce on the exclusivity of the Warsaw Convention 1929 when they upheld the judgment of the trial court appealed against.
The parties duly filed and exchanged their respective briefs of argument. At the hearing of the appeal on 17/3/2014, S.A. Akorede Lawal Esq. adopted and relied on the appellant’s brief settled by Otunba Yomi Oshikoya, dated and filed on 24/5/2012. He also adopted and relied on the appellant’s reply brief filed on 9/11/2012. In adumbration of the arguments canvassed in his brief, he submitted that the appellant’s main contention is that the respondent’s case was brought under the common law instead of under the Warsaw Convention of 1929, which has been domesticated in Nigeria under The Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953 (hereinafter referred to as the CAO). He submitted that under the CAO there are three possible causes of action available to a passenger. He submitted that the relevant article for this case is Article 19, while the remedy is provided for in Article 22 (2). He also referred to Articles 24 and 25 of the Order in support of the submission that no matter how the action is framed, it must comply with the provisions of the Warsaw Convention. He urged the court to allow the appeal.
Femi Atoyebi, SAN, the Respondent in this appeal, appeared in person. He adopted and relied on his respondent’s brief filed on 4/7/2012. In further expatiation of his brief he pointed out that contrary to the appellant’s contention that the action was founded on common law, both lower courts found that the action was based on the Warsaw Convention. He submitted that there was abundant evidence of willful misconduct by the appellant, which defeats their right to a defence under Article 19 of the CAO. He urged the court to uphold the concurrent judgments of the two lower courts and dismiss the appeal. He informed the court that he was prepared to waive the claim for interest on the judgment debt.
In reply on points of law, Mr. Akorede-Lawal submitted that the appellant’s contention is that the concurrent findings of the two lower courts amount to a nullity, as there is no cause of action. He submitted that where there is no cause of action, the issue of wilful misconduct could not arise. The appellant distilled a single issue for the determination of the appeal, which was adopted by the respondent viz: Whether or not the learned Justices of the Court of Appeal were right in affirming the judgment of the lower court in respect of assessment of damages and exclusivity of the Warsaw Convention 1929. In support of the sole issue for determination, learned counsel for the appellant submitted that the relationship between the parties is that of carrier and passenger. He submitted that the contract between the parties is a special contract of international carriage by air of passenger, baggage and/or goods. He submitted that the applicable law is the Warsaw Convention 1929 which has been domesticated in Nigeria vide Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953 (CAO) contained in Vol. II 1958 Laws of the Federation. He submitted that this position has been confirmed by the Supreme Court in Ibidapo V. Lufthansa Airlines
(1997) 4 NWLR (Pt.498) 124. Learned counsel contended that the Warsaw Convention 1929 and the CAO provide the passenger’s exclusive cause of action and sole remedy against an air carrier in respect of injury, loss, damage or delay in the carriage of passengers or delivery of baggage and goods in the course of or arising out of international carriage. He referred to: Sidhu V. British Airways (1997) 1 All ER 193 or 1 AC 430
. He also referred to Article 1 of the Order.
He submitted that Articles 17, 18 and 19 of the CAO provide causes of action in respect of:
- Injuries to passenger or death;
- Damage to checked baggage or goods and
- Damage occasioned by delay in the transportation by air of passengers, baggage or goods respectively.
He submitted that the respondent’s claim as endorsed on his further amended statement of claim is a claim that could only be considered at common law not having been formulated with the provisions of the CAO in mind. He did however concede that the claim could be considered within the purview of Article 19. He submitted that the gravamen of the respondent’s claim is that his baggage, which ought to have been delivered to him in Lagos when he arrived on 8th May 2000, was delivered to him on 10th May 2000. He contended that the delivery was within the number of days allowed airlines to deliver passengers’ baggage. He further contended that as at the date when the respondent decided to collect his bag in London the appellant was not in breach of the General Conditions of Carriage. He argued that since the respondent travelled of his own volition to collect his bag, even though he had been informed that it would be delivered on the 10th of May, the appellant was not liable for the delay.
Alternatively, he submitted that if the respondent’s claim is merely for the delay in delivering his checked baggage, the remedy available to him is as provided for in Article 19 of the CAO. He submitted that Article 19 must be read in conjunction with Article 24, which provides that in
cases covered by Articles 18 and 19 any action for damages however founded can only be brought subject to the conditions and limits set out in this convention. He reiterated his contention that the respondent’s case was founded on breach of contract under the common law and not as required under the Convention. He submitted that notwithstanding the way the respondent’s claim is couched, if the head of claim does not fall within the contemplation of the Convention, the action is bound to be dismissed. He relied on the authority of Oparaji V. Virgin Atlantic Airlines Ltd
wherein the plaintiff’s claims were based on delay. He noted that although the claims were within the scope of Article 19, they were dismissed because of his decision to secure substitute travel and not because of any action on the part of the carrier in delaying him. He submitted that the claim for damages as asserted by the respondent is wrong and misleading as there is no legal authority that moral damages should apply to any baggage claim.
He submitted further that mental anguish is only recoverable where there is bodily injury. He referred to decided cases
and maintained that the claim for £100,000.00 and the entire heads of claim are founded on inconvenience and are therefore not sustainable or recoverable in law. He submitted further that the respondent could only establish a cause of action under Article 19 and that the damages recoverable are strictly as provided in Article 22 (2).
He also submitted that although the lower court rightly identified the applicable law, it came to a wrong conclusion by affirming the remedies granted to the respondent under the common law governing breach of contract and tort of negligence. He referred to Sidhu V. British Airways
(supra) at 454. He submitted that all the claims asserted in paragraph 22 of the further amended statement of claim under particulars of losses do not contain any claim in respect of delay but rather that it contains heads of claim which the courts, in applying Article 19 of the Convention, have universally held not to be recoverable in a claim based squarely on delay. He submitted that this court in the case of Harka Air Services Nig. Ltd. V. Emeka Keazor
(2011) 12 NWLR (Pt.1264) 320, upheld the exclusivity of the Warsaw Convention to matters between an airline and its passengers. He submitted that the application of common law to this case by the lower court led to a wrong assessment of the damages recoverable by the respondent and thus the court erroneously affirmed the decision of the trial court. He submitted that the finding of the lower court that the award of general damages in the sum of N3 million was neither too high nor too low is at variance with the provisions of Article 22 (2). Relying on the decision of this court in Harka Air Services Nig. Ltd. V. Emeka Keazor
(supra) and the case of Horabin V. British Overseas Airways Corporation
, he submitted that a party alleging willful misconduct must prove it with probative facts and evidence. He maintained that the respondent failed to plead or prove willful misconduct on the part of the appellant or any of its agents, which would entitle him to make a claim for a higher amount than that provided for under Article 22 (2).
He again submitted that it is only if and when a passenger or consignor, at the time of handing over his baggage to the carrier, has made a special declaration of the value or it is proved that the carrier is guilty of willful misconduct that the carrier will not be able to take advantage of the limited liability provided for under the Convention. He referred to Articles 22 (2) and 25. In reference to the finding of the lower court to the effect that the award of general damages is within the discretion of the court, learned counsel submitted that the finding cannot be supported having regard to the provisions of Articles 19, 22 (2), 23, 24 and 25 of the Convention. He maintained that the award of damages in matters governed by the ICAO is not subject to the discretion of the trial judge, unless the respondent is able to break the ceiling of the limit of liability of the appellant by pleading and proving by probative evidence that the appellant is guilty of willful misconduct.
In reply to the above submissions, the respondent, P.O. Atoyebi, SAN agreed that the claim is governed by the CAO. He submitted that both lower courts considered and applied the provisions of the Order to determine the rights and liabilities of the parties. He submitted that what the lower court decided was that having regard to the provisions of Article 25, the appellant could not avail itself of the provisions of the Order to limit its liability because it is not entitled to any defence thereunder. He referred to relevant portions of the judgments of the two lower courts in support of this submission. He contended that the evidence showed that the appellant was clearly negligent and/or guilty of willful misconduct towards the respondent in the performance of its duties to him under the contract of carriage. For what constitutes negligence he relied on Odinaka v. Moghalu
and Makwe v. Nwukor
. He submitted that all efforts by the respondent to retrieve his bag and the resultant cost and inconvenience are the direct consequences of the appellant’s negligence. He referred to paragraphs 21 & 22 of the further amended statement of claim where negligence was specifically pleaded. He argued that the refusal of the appellant to put the respondent’s bag on the next available flight despite having located it in London was a deliberate act by the appellant and/or its staff, which borders on reckless indifference towards the respondent. He referred to Harka Air Services (Nig.) Ltd V. Emeka Keazor
for what constitutes wilful misconduct. He submitted that not only did the respondent plead willful/intentional or deliberate misconduct; there was ample evidence on record in support thereof. He urged the court to discountenance the submissions of learned counsel for the appellant in this regard. He submitted that the foreign authorities of Horabin v. British Overseas Airways Corp
and Rusten Platinum Mines Ltd. Vs South African Airways
relied upon by the appellant in fact support the respondent’s case. He contended further that in any event, by virtue of Article 25, what would amount to willful misconduct is to be determined in accordance with the law of the court seised of the matter, which in the instant case is Nigerian law.
Learned Senior Counsel submitted that from all the actions of the appellant and/or its agents in London, the only conclusion a reasonable man could draw is that the appellant is guilty of gross willful misconduct in the handling of the respondent’s hand baggage. He submitted that the appellant’s right to exclude or limit its liability is taken away if the damage is caused by its willful misconduct or by such default on its part as, in. accordance with the law of the court seised of the case, is considered to be the equivalent of willful misconduct. He submitted that where, as in this case, both the trial court and the lower court made findings of willful misconduct against the appellant, damages are left at large. He referred to Harka Air Services (Nig.) Ltd. V. Emeka Keazor Esq
. He referred to Article 25 and submitted that appellant’s case is for damage occasioned by delay in the carriage of his luggage by air and therefore cognizable under Article 19. He submitted that all the cases cited by the appellant are distinguishable from the facts of this case and therefore irrelevant, as they relate to either injury to passengers carried by air or loss of their luggage. He contended that having sufficiently demonstrated that the appellant was not entitled to exclude or limit its liability under the Order, the lower court was at liberty and was right to award such special and general damages as the common law recognizes, in favor of the respondent. He referred to items (a) – (f) under paragraph 22 of the further amended statement of claim, for special damages totaling US$5,450 and £7,013 and submitted that the claims were specifically pleaded and proved by the respondent. He submitted that the claim for £100,000.00 is a claim in damages for stress and inconvenience. He contended that the respondent had testified at the trial that a similar award was made by the appellant in favor of one Victoria Beckham, a white, British lady and wife of the famous football star, David Beckham who, as a first class passenger lost her luggage while flying from the United States to London. He noted that she was paid compensation of £100,000.00 and given a number of complimentary first class tickets to any destination of her choice worldwide. He noted further that certified true copies of British newspaper reports of this fact were tendered and admitted as Exhibits 14 and 15 without objection from the appellant. On the factors to be considered by the court in the award of general damages, learned Senior Counsel referred to the cases of U.A.C. (Nig.) V. Irole
and Odiba v. Azege
. He maintained that the award of general damages in addition to the special damages is justified in the circumstances of this case. He submitted that general damages are, by their nature, what the law would presume to be the direct, natural and probable consequence of the act complained of. He submitted that unlike special damages, general damages need not be strictly proved. He referred to Unipetrol V. Adireje (W.A.) Ltd
and Watts V. Morrow
. He submitted that having regard to the evidence of the alleged compensation to Mrs. Victoria Beckham in the sum of £100,000.00 in addition to a number of first class complimentary tickets, which evidence was neither challenged nor controverted, it was reasonable to presume that the respondent, a respected citizen of Nigeria and a learned Senior Advocate of Nigeria, should receive the same treatment. He urged the court to follow the standard adopted by the appellant itself in dealing with its British first class passenger and uphold the award of general damages.
In his reply brief, learned counsel for the appellant submitted that the respondent made out a case of negligence and not willful misconduct in his pleadings. He submitted that the respondent is bound by his pleading and reliance on any evidence led in respect of willful misconduct would be wrong in law and should be expunged from the record. He cited the case of Ehang & Ors. V. Adu & Ors
. He contended that the arguments in respondent’s brief deal mainly with negligence. He submitted further that the respondent had a duty to plead particulars of the willful misconduct, which he failed to do. He relied on Oyedele V. I.U.T.H
.; George & Ors. V. Dominion Flour Mills Ltd
. In conclusion, learned counsel submitted that the concurrent findings of the two lower courts are based on wrong principles of law and cannot stand. He urged this court to interfere and correct the anomaly. He referred to Harka Air Services (Nig.) Ltd. V. Emeka Keazor Esq
, and urged the court to allow the appeal. It is the contention of the appellant herein that the two lower courts failed to pronounce on the exclusivity of the provisions of the Warsaw Convention to the relationship between the parties and that both courts erroneously considered the case from the perspective of common law principles. It was settled as far back as 1997 in the case of Ibidapo V. Lufthansa Airlines
that the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953 (the CAO), which domesticated the Warsaw Convention of 1929 in Nigeria, not having been repealed or declared invalid, is an existing law within the meaning of Section 274 (1) of the 1979 Constitution (now Section 315 (1) of the 1999 Constitution as amended).
The Court while upholding the judgment of the lower court in terms of the award based claimed while setting aside the claim for general damages. The Court also abided the consequential orders made.
1.4. Limitation of Suits against NCAA
Section 24 of the NCA Act provides for condition precedence to the institution of an action against the NCAA. Subsection 1 states that,
Notwithstanding anything contained in any other law or enactment, no suit shall lie against the Authority, a member of its Board, its Director‐General, or any other employee of the Authority for any act done in pursuance or execution of any public duty under this Act or any law or enactment, or in respect of any alleged neglect or default in the execution of any public duty under this Act or such law or enactment, unless it is commenced within one (1) year next after the act, neglect or default complained of, or in the case of a continuance of damage or injury, within one (1) year after the ceasing thereof
In other words, after the expiration of one year of the act, neglect or default complained of, or in the case of a continuance of damage or injury. Moreover, such suits can only be instituted after written notice of intention to commence the suit shall have been served upon the Authority by the intending plaintiff or his agent; and the notice shall clearly and explicitly state the cause of action, the particulars of the claim, the name and place of abode of the plaintiff and the relief sought
This is a pre-action requirement that must be taken note of to avoid frivolous prosecution. Therefore, an aggrieved party wishing to sue the NCAA should do so timously, that is within one year of the act complained against. Failure to do so would render the action statute barred.
In conclusion, many airline operators in Nigeria do not compensate victims for injury or death as provided by the law largely due to ignorance on the part of the victims about their legal rights. It is submitted that air passenger safety and rights will be better guaranteed if the airlines are held strictly liable for their actions.
Section 48 (1) NCA Act Op Cit.
Ibid, Section 48 (2).
Ibid, Section 48 (3).
See: Eliochin (Nig.) Ltd. V. Mbadiwe
(1986) 1 NWLR (Pt.14) 47 at 65 per Obaseki, JSC; Odiba V. Azege
(1998) 9 NWLR (Pt.566) 370 at 382 D – E.
See: Shell Petroleum Dev. Co. (Nig.) Ltd. V. High Chief Tiebo VII & Ors
, (1996) 4 NWLR (Pt.445) 657 at 680 D – E; Okongwu V. N.N.P.C
. (1989) 4 NWLR (Pt.115) 296; Cameroon Airlines V. Otutuizu
(2011) 4 NWLR (Pt.1238) 512.” Per Kekere-Ekun, J.S.C. (Pp. 38-39, paras. F-B.
See Esan, Akintunde. Op Cit.
See Section 251 (1) K of the Constitution; Article 33 Montreal Convention.
(2014) LPELR-23120(SC); Suit No: SC.332/2010.
(2006) WL 2708034, E.D.N.Y.
 Morris V. KLM Royal Dutch Airlines
: King V. Bristow Helicopters Ltd
. (2002) ALL ER (D) 394 (Feb.) (2002) UKHL 7.
(1952) 2 ALL ER 1016 @ 1020 B – D per Barry, J.
(1992) 4 NWLR (Pt.233) 1 15 E.
(2001) FWLR (Pt.62) 1 at 16 C – G.
(supra) at 364 C per Rhodes Vivour, JSC.
(1977) Lloyd’s Rep. 564 at 569.
(supra) at 350 G – H.
(2001) 5 NWLR (pt.707) 583 at 599 B – E.
(1998) 9 NWLR (Pt.566) 370 at 382 D – E & 388 C – E.
(2005) 14 NWLR (Pt.946) 563 at 632 – 633.
(1991) 1 WLR 1421.
(1981) N.S.C.C. 453 at 459 per Nnamani, JSC.
(1990) 6 NWLR (Pt. 155) 194 at 199.
(1963) 1 ANCR 70 at 76.
(supra) at 350 G – H.
(1997) 4 NWLR (Pt.498) 124.
Section 24 (1) NCAA Act 2006 Op Cit.
Ibid, Section 24 (2).]]>
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