JURISDICTION IN ACTIONS FOR BREACH OF CONTRACT OF CARRIAGE BY AIR IN NIGERIA

 

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 6^th 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.

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[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).