ABSTRACT
In Nigeria, there is often a difficulty faced by many lawyers in determining the proper Court with jurisdiction to entertain actions for breach of contract of carriage by air with the consequence that matters that have been litigated up to the Court of Appeal stage end up being struck out for want of jurisdiction by the Court of first instance. The controversy springs from the competing jurisdiction of the Federal High Court and the States’ High Court in regards to which of the two Courts is vested with jurisdiction to entertain such claims. In some decisions of the Court of Appeal, it was held that the jurisdiction of either of the two Courts to entertain such matters is tied to a determination of the fact whether carriage had in fact taken place. If carriage had taken place, then it is an aviation claim for which jurisdiction lies solely with the Federal High Court and if no carriage had in fact taken place then it is regarded as a simple contract for which jurisdiction lies with the States’ High Court. This dichotomy between aviation contract and a simple contract is however find no support under Nigerian law in view of the of the clear and unambiguous provision of Section 7(1) of the Federal High Court (Amendment) Act of 1991 No. 60 which vests exclusive jurisdiction on the Federal High Court over all aviation related matters.
INTRODUCTION
Discussions about jurisdiction in actions for breach of contract of carriage by air often raise questions about the issue of the competing jurisdiction between the Federal High Court and the States’ High Court in Nigeria in regards to which of the two Courts is vested with jurisdiction to entertain such claims. The confusion many lawyers have faced had always been about which of the two Courts to approach in vindication of their clients’ grievances. This is arising from the controversy concerning the demarcation into an aviation contract or a simple contract. This is in no small measure brought about by the many contradictory decisions of the Court of Appeal on the issue. This article seeks to resolve the controversy by showing that the above demarcation into an aviation contract and a simple contract in situating jurisdiction is unhelpful and is at the root of the confusion surrounding the subject. The article will proceed after the introductory stage to highlight the legal regime over contracts of carriage by air before finally identifying the proper Court with jurisdiction to entertain aviation related matters in Nigeria.
LEGAL REGIME OVER CONTRACTS OF
CARRIAGE BY AIR IN NIGERIA
Aviation claims,
especially where they have to do with contracts of carriage by air, are sui generis
and not governed by ordinary national laws of contract but by the
Articles/Provisions of the Montreal Convention 1999.[1] The
Montreal Convention was
incorporated into Nigerian law by virtue of Section 55 of the Civil Aviation Act[2] which
provides as follows:
“55. Carriers’ Liability
(1) The
provisions contained in the Convention for the Unification of certain rules
relating to International Carriage by Air signed at Montreal on 28th May, 1999
set out in the Second Schedule of this Act and as Amended from time to tune,
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.”
In other words, the Civil Aviation Act recognises the
Montreal Convention, as the applicable law in a cause of action founded on the
performance and/or enforcement of contracts of international carriage by air
and not domestic laws of contract/tort. From the date of commencement of the Act, the Convention became
the basis for establishing an airline’s liability for both international and non-international carriage
on flights in Nigeria. The underlying effect of the Montreal Convention is that it
is preemptive of claims arising under national laws in contracts of air
transportation. Preemption under the Convention is governed by its Article 29,
“Basis of Claims,” which states:
“In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring the suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable”.
The above point was reiterated
by the Supreme Court in HARKA AIR
SERVICES LTD. v. KEAZOR[3]
thus:
“The law
is that where domestic/common law right has been enacted into a statutory
provision, it is to the statutory provision that resort must be had for such
right and not the domestic/common law. Hence an air passenger is not at liberty
to choose as between the provisions of the Convention and the domestic/common
law for claims for damages against the carrier. Such claims have to be asserted
only in accordance with and subject to the terms and conditions of the
Convention and cannot be pursued under any other law.”
In a nutshell, for a
plaintiff to find a cause of action in a contract of carriage by air, there
must be a remedy for a perceived grievance under any of the provisions of the Montreal
Convention. If a remedy cannot be asserted under the Convention, then the
plaintiff has no other remedy. The principle was aptly restated by
the House of Lords in ABNETT v BRITISH AIRWAYS PLC; SIDHU v
BRITISH AIRWAYS PLC[4]
thus:
“The
Convention is, of course, tightly drawn on these matters. This has been done in
the interests of the carrier, whose exposure to these liabilities without the
freedom to contract out of them was a principal consequence of the system which
it laid down. Were remedies outside the Convention to become available, it
would encourage litigation in other cases to restrict its application still
further in the hope of obtaining a better remedy, against which the carrier
would have no protection under the contract. I am in no doubt that the
Convention was designed to eliminate these difficulties. I see no escape from
the conclusion that, where the Convention has not provided a remedy, no remedy
is available.
For
these reasons I would dismiss both appeals.”
However, since contracts of carriage by air involves the transportation of passengers or goods from one place to another by means of an aircraft, for there to be an aviation claim, apart from there being a contract of carriage, actual or partial carriage must take place. This is in view of Article 1 of the Convention which specifically provides that the “Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward…” But this may not be the position in Nigeria in view of the extant statutory provision on jurisdiction over aviation related causes of action which will now be discussed hereunder.
JURISDICTION OVER AVIATION RELATED MATTERS IN NIGERIA
The law is settled that jurisdiction is a fundamental issue
in adjudication. It is a threshold point which can be raised at any time. Where
a court has no jurisdiction to entertain a matter, if it proceeds to hear the
matter, the proceedings are a nullity no matter how well or brilliantly
conducted[5].
This
point was emphasized by the Supreme Court per OKORO, J.S.C. in IKPEKPE v. WARRI REFINERY &
PETROCHEMICAL CO. LTD & ANOR[6] thus:
“The
importance of the jurisdiction of a Court cannot be over emphasized. The law is
trite that jurisdiction is a threshold issue and livewire that determines the
authority of a Court of law or Tribunal to entertain a case before it and it is
only when a Court is imbued or conferred with the necessary jurisdiction by the
Constitution or law that it will have the judicial power and authority to
entertain, hear and adjudicate upon any cause or matter brought before it by
the parties. Where a Court proceeds to hear and determine a matter without the
requisite jurisdiction, it amounts to an exercise in futility and the
proceedings and judgment generated therefrom are null, void and of no effect no
matter how well conducted.”
Furthermore,
jurisdiction (substantive or procedural) is very paramount to the judicial
process, and when a court lacks it, it has no competence to take any further
step in the proceedings, as any such step, no matter how well intended or
ordered, will be null and void ab initio[7].
It is trite that the powers and jurisdiction of the courts are derived from the
Constitution, and the statutes that create the court, and other enabling laws.
When the issue of lack of a court’s jurisdiction is raised, the court will
necessarily look at the law applicable, the issue being purely an issue of law.[8]
The provisions of the Constitution are very clear with regards to which court,
as between a federal and a state high court, has Jurisdiction in respect of
aviation matters. The law is trite that the claim before the court
determines its jurisdiction[9]
and the general notion is that once a claim is predicated on contracts of
carriage by air then it is an aviation claim over which the applicable law is
the Montreal Convention and for which the law vests jurisdiction in the Federal
High Court by virtue of Section
251(1)(k) of the Constitution of the Federal Republic of Nigeria[10] which
provides thus:
“(1)
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 court in civil causes and matters –
(k) aviation
and safety of aircraft”.
But this jurisdiction
does not include entertaining claims bordering on simple contracts[11] because
section 272 of the
same Constitution vests jurisdiction over simple contracts on the States High
Courts. This point was well reiterated in IKPEKPE
v WARRI REFINERY & PETROCHEMICAL CO. LTD & ANOR[12]
thus:
“I have
given a thorough examination of a plethora of cases of this court on this issue
and there is a consistent pronouncement that the Federal High Court does not
have jurisdiction to entertain matters relating to simple contracts… In
Integrated Timber & Plywood Products Ltd v Union Bank Nigeria (2006) 12
NWLR (Pt.995) 483, this Court held emphatically that in a simple contract (as
in this case), it is the High Court and not the Federal High Court that has
jurisdiction to entertain and determine it.”
The position of the Supreme
Court over jurisdiction over simple contract matters based on constitutional
provisions have kind of influenced the determination of many cases which has
led to the demarcation into aviation contracts and simple contracts in
determining the Court with jurisdiction. So the starting point is the question
of when to make the demarcation whether it is a simple contract or an aviation
contract. According to a school of thought, for there to be an aviation claim,
apart from there being a contract of carriage, actual or partial carriage must
take place otherwise it remains a simple contract for money had and received for an airline ticket.
In the case of KLM ROYAL DUTCH AIRLINES v. TAHER[13],
the Court of Appeal held that there must be a direct and immediate contact with
an aircraft and that the passenger must have been carried inside the
aircraft before a matter can be said to be an aviation matter. Therefore, the
Federal High Court can exercise exclusive Jurisdiction over the subject matter
only when there was actual or partial carriage otherwise the State High Court
have exclusive jurisdiction. The Court held that jurisdiction is dependent upon
the type of breach complained of. That is, whether the type of breach committed
was within the category of simple contract in respect of which the Federal High Court has no
jurisdiction or it falls within the scope of aviation related matters that the
Constitution has by section 250 (1) (k) clothed the Federal High Court
with the jurisdiction to entertain. The rationale for this decision was
anchored on the meaning the Court ascribed to the terms “Aviation” and “Carriage”
thus:
“Aviation
has been defined as: (1) the operation of aircraft, (2) the design, development,
production of aircraft or the art of science of flying aircraft” or operation
or use of aircraft. The word, “carriage” is defined Oxford Advanced learner’s
dictionary to include, the act of transporting goods‟ etc.
The Webster’s dictionary also describes it as “the act or cost of carrying.”
It includes “the act or process of transporting or carrying” or the “the act of
conveying.”
The Court further held
that for there to be carriage of passenger by air, the passenger must have
entered or boarded the aircraft and be in the process of being carried or
conveyed. As such, where there has not been an act of carrying or conveying
someone in an aircraft, the person cannot definitely say there has been a
carriage. It was further posited that, the passenger must have connection
with the “aircraft”. That is saying in essence that the jurisdiction does
not extend to every matter that is loosely and vaguely connected with aircraft.
Reference was made to an expression made during the 6th session of
the Warsaw conference which established that “the
period of carriage commences from the time of embarkation of persons on board
the aircraft.” To support this, the court made reference to the
cases of KOTSAMBASIS v SINGAPORE
AIRLINES LTD,[14]
and CURRAN v AER LINGUS[15] where
it was stated that “there must
be a tight tie between an incident and the physical act of entering an
aircraft.”
In the case of KLM ROYAL DUTCH AIRLINES v. IDEHEN[16]
the subject was further elucidated upon per Yargata Byenchit Nimpar JCA as
follows:
"…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 fulfilled without any hitch. If the contract had not been part performed, then the claim will come under the State High Court.”
Another consideration
by Courts to determine if it is an aviation claim over which the Montreal Convention
applies is the determination of whether there was “embarkation” and “disembarkation”.
In other words, carriage will arise only when the passenger is in the process
of embarking or disembarking the aircraft. In DAY v TRANS WORLD AIRLINES INC.,[17]
the Court adopted a tripartite test to determine when passengers are deemed to
be in the course of “embarking”. The consideration under this multi-factored
test is to include (1) the passenger’s activity at the time of the incident
complained of, (2) the passenger’s location at the time and (3) under whose
direction and control the passenger was acting at the time. In that case, the
passenger was deemed to have satisfied the test because, he had already
surrendered his ticket for check-in, passed through passport control, and
entered the area surrendered exclusively for those about to depart on the
flight. The Day Test has been consistently followed by Courts in other jurisdictions
(outside Nigeria) in considering whether “embarkation” had taken place. Several
other Courts have similarly applied the Day Test to a determination of whether
the passenger was in the process of “disembarkation” at the material time.[18]
The Court of Appeal in many decided cases[19] have proceeded on the basis that a State High Court has jurisdiction to adjudicate on a contract of carriage by air because the transaction between the parties was assumed to be a simple contract for money had and received for an airline ticket since no carriage had taken place in the true sense. In other words, their position was that to amount to an aviation contract, there must be an element of carriage, boarding or embarkation all of which must have taken place. However, the decisions making the demarcating of a simple contract and an aviation contract based on actual carriage taking place in other to situate jurisdiction in a contract of carriage by air seem to be insupportable under Nigerian law in view of the clear and unambiguous provisions of Section 7(1) of the Federal High Court (Amendment) Act of 1991 No. 60.[20] that states -
The
Court shall to the exclusion of any other court have original jurisdiction to
try civil causes and matters connected with or pertaining to –
(l) aviation; safety of aircraft
and carriage of passengers and good by air and meteorology;
Paragraph 3 of the Act further provides
as follows:
Where
jurisdiction is conferred upon the court under sub-sections (1) and (2) of this
section, such jurisdiction shall be construed to include jurisdiction to hear
and determine all issues relating to, arising from or ancillary to such subject
matter.
In KLM
AIRLINE v. KUMZHI[21]
and KABO AIR LTD v OLADIPO[22],
it was held that the combined
understanding of the provisions of the Federal High Court Act 1973, as
amended by Decree No. 60 of 1991, is to oust the jurisdiction of the State High
Court, in matters covered under Section 251 (1) (k) as amended by the Federal
High Court Act, 1973 as supplemented by Decree No .60 of 1991; and aimed at
increasing the scope of the jurisdiction of the Federal High Court in respect
of the subject matter specified therein.
Furthermore, in OTOAKHIA v AERO CONTRACTOR NIGERIA LTD[23] the
Court of Appeal rejected the
simple contract argument and stated that the Federal High Court was seized of
Jurisdiction over all aviation related causes by virtue of Section 7(1) of
the Federal High Court (Amendment) Act of 1991 No. 60. UGOCHUKWU ANTHONY OGAKWU, JCA in his concurring judgment at
pages 27 – 29 paragraphs C-G had this to say on the exclusive jurisdiction of
the Federal High Court with respect to aviation matters:
“…the
jurisdiction of the Federal High Court as set out in Section 251 (1) of the
1999 Constitution as amended, includes such other jurisdiction as may be
conferred upon the Federal High Court by an Act of the National Assembly. The
said Section stipulates:
‘251 (1)
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
– …” (Emphasis supplied).
The
operative words for the purposes of the instant appeal are the words “in
addition to”. It is a phrase which has been defined in Dictionary.com LLC
online Dictionary as meaning: ‘the act or process of adding or uniting;
the result of adding; something added.’ In effect, in addition to the
items enumerated in Section 251 (1) (a) (s) of the Constitution, the Federal
High Court also has exclusive jurisdiction in respect of any matter in which an
Act of the National Assembly confers jurisdiction on it.
In this
regard, the provisions of the Federal High Court (Amendment) Decree [Now Act]
No. 60 of 1991 are relevant. Inter alia, it stipulates as follows in
Section 2. (7) (1) (1), (3) and (5):
“2(7)(1)
– The Court shall to the exclusion of any other Court have original
jurisdiction to try civil causes and matters connected with or pertaining to-
(L) aviation, safety of aircraft and carriage of passengers and goods by
air and meteorology.
(3)
where jurisdiction is conferred upon the Court under sub-section (1) and (2) of
this section, such jurisdiction shall be construed to include the jurisdiction
to hear and determine all issues relating to, arising from or ancillary to
any such subject matter.”
“(5) Notwithstanding
anything to the contrary contained in any other enactment or rule of Law
including the Constitution of the Federal Republic of Nigeria, any power
conferred on a State High Court or any other court of similar jurisdiction to
hear and determine any civil matter or proceedings shall not extend to any
matter in respect of which jurisdiction is conferred on the court under the
provisions of this Section.” (Emphasis supplied)
By this
stipulation, the National Assembly has conferred on the Federal High Court, the
additional jurisdiction, to the exclusion of any other court, to try civil
causes and matters “connected with or pertaining to carriage of passengers
and goods by air”, and the said jurisdiction shall be construed to include
the jurisdiction to hear and determine all issues relating to, arising from or
ancillary to, for the purposes of this appeal, carriage of passengers and goods
by air.
By the
provisions of Section 315 (4) (b) of the 1999 Constitution, the Federal High
Court (Amendment) Decree [now Act] No. 60 of 1991 is an existing law which by
Section 315 (1) (a) of the Constitution shall have effect and shall be deemed
to be an Act of the National Assembly.
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.”
The above position finds support in the
Supreme Court decision of HARKA AIR
SERVICES (NIG.) LTD v KEAZOR[24]
where it was held per ADEKEYE, JSC that “an airline’s liability to
its passengers or customers could arise as a result of … interactions in the
course of preparing for or the actual conduct of flight operations.” The Supreme Court in
that case, in fact, affirmed that the Federal High Court has been held to have
exclusive jurisdiction over aviation related causes. It is therefore
respectfully submitted that the issue of the purchase of air ticket for
instance, is clearly an interaction in the course of preparing for the actual
conduct of flight operations in an aviation contract for which Section 7(1) of
the Federal High Court (Amendment) Act of 1991 No. 60 vests exclusive jurisdiction on the Federal High Court.
Accordingly, a State High Court is bereft of jurisdiction to adjudicate this
type of matter.
Furthermore, in a recent decision, the
Court of Appeal in OKWUDILI ANOZIE &
5 ORS. v EMIRATES ARLINES[25]
put the matter beyond cavil when it held that there was no valid decision from
which an appeal can emanate from the FCT High Court when that Court proceeded
to hear and determine a matter pertaining to an issue of purchase of air ticket
that was never used which the Court adjudged to be an aviation matter over
which exclusive jurisdiction is vested in the Federal High Court.
Finally, the Supreme Court in CAMEROON AIRLINES v OTUTUIZU[26] cleared all doubts when it said – The Federal High Court has exclusive jurisdiction over aviation related causes and action. It is also worthy of note that in MEKWUNYE v EMIRATES[27] in which no carriage took place as it was a matter founded on denied boarding, the Supreme Court upheld the judgment of the Federal High Court. Even though the issue of jurisdiction was not raised at the Supreme Court in that case, this judgment by default gives validation to the argument of the Federal High Court having jurisdiction in all aviation related causes until otherwise determined by the apex Court maybe on another occasion when the subject is squarely before it.
CONCLUSION
As has been highlighted
above, there is no reason for the confusion surrounding the subject of the proper
Court to approach to seek redress in a contract of carriage by air based on the
dichotomy between aviation contract and simple contract based on the determination
of the question of whether or not carriage had taken place. Even though, the
trend in other jurisdictions is that for there to be jurisdiction by the Court
over a contract of carriage by air, embarkation and disembarkation must have
taken place, the position in Nigeria in view of the clear and unambiguous
provision of Section 7(1) of the Federal
High Court (Amendment) Act of 1991 No. 60 which vests jurisdiction on the Federal
High Court over all aviation related matters. Premised on the said statutory provision, it
can validly be argued that any issue whatsoever that relates to or arises from
or is ancillary to carriage of passengers and good by air is a question for the
Federal High Court only and not susceptible to the alleged dichotomy between
aviation contracts and simple contract. Once it is a contract for the carriage
of passengers by air then there can be no such demarcation as jurisdiction will
be solely vested in the Federal High Court to the exclusion of a State High
Court.
[1] Convention for the Unification of Certain Rules for
International Carriage by Air (Montreal, 28 May 1999).
[2] No. 30, 2022.
[3]
[2011] All FWLR (pt. 591) 1402).
[4] [1997]
1 All E.R. 193.
[5]
Madukolu v. Nkemdilim (1962) 2 All NLR 581; Martins v. U.P.L. (1992) 1 NWLR
(Pt. 217) 322; Western Steel Works Ltd. v. Iron & Steel Workers Union of
Nigeria (1986) 3 NWLR (Pt. 30) 617.
[6] (2018)
LPELR-44471 (SC)
[7] Kossen v. Savannah Bank (1995) 9 NWLR (Pt. 420) 439
[8] Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166 @ 201
[9] Inakoju v. Adeleke [2007] 4 NWLR (Pt. 1020) 427 @ 588.
[10] 1999
(as amended).
[11]
See Njikonye v. MTN (Nigeria) Communications
Limited (2008) 9 NWLR (pt. 1092) 339; Adelekan v. Ecu-Line NV (2006) 12
NWLR (pt. 993) 33 at 52.
[12] Supra note 6.
[13] (2014)
3 NWLR (Pt. 1393) 137
[14] [1997] 42 NSWCR 110.
[15] 17 Av.Cas. (CCH) ¶
17,560 (S.D.N.Y. 1982).
[16] (2017)
LPELR – 43575 (CA)
[17] 528 F.2d 31 (2d Cir.
1975), cert. denied, 429. U.S. 890 (1976).
[18]
See: Knoll v Trans World Airlines, Inc. 610 F.
Supp. 844 (D. Colo.1985); Maugnie v. Companie Nationale Air. France, 549 F. 2d 1256 (CA9 1977).
[19] I.e. Delta airline v Josef & Anor (2019) LPELR-46921
(CA), KLM Royal Dutch Airlines v Taher (2014) 3 NWLR (Pt. 1393) 137, KLM Royal
Dutch Airlines v Idehen (2017) LPELR – 43575 (CA).
[20] Enacted pursuant to section 251 (1) & (2) of the
1999 Constitution (as amended)).
[21] (2004) 8 NWLR (PT.875) 231.
[22] (1999) 10 NWLR (PT.624) 517.
[23] (2014)
LPELR – 23319 CA.
[24] Supra
note 3.
[25] UNREPORTED
(delivered on 17 March 2023 by the Abuja Division of the Court of Appeal).
[26] (2011)
4 NWLR (PT. 1238) @537 F-G.
[27] (2019)
LPELR. 46553 (SC).
