LIABILITY FOR THE BREACH OF A FUNDAMENTAL TERM IN A CONTRACT OF CARRIAGE BY AIR

CASE TITLE: MISS PROMISE MEKWUNYE v. EMIRATES AIRLINES (2019) LPELR-46553(SC)

JUDGMENT DATE: 15TH FEBRUARY, 2019

PRACTICE AREA: AVIATION LAW

LEAD JUDGMENT: EJEMBI EKO, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Aviation Law.

FACTS

This is an appeal against the decision of the Court of Appeal sitting in Lagos.

The facts of the case are that Seven (7) months before her travel date the Appellant, through Mr. Clement Dolor an officer/employee of the Respondent at the Respondent’s office in Victoria Island, Lagos, bought the Respondent’s airline return ticket (electronic) for $2,067 USD to enable her travel from Dallas – Houston – Dubai – Lagos and back. The ticket, through Clement Dolor, was confirmed more than three (3) times before the Appellant’s travel date on 17th December, 2007. The Appellant, a student of the North Texas University, Denton, Texas USA, came to the Dallas airport on the said 17th December, 2007 to commence her travel to Nigeria whereat she presented the flight ticket for issuance of boarding pass. She was denied boarding, and no reason was given to her; notwithstanding that her ticket, Exhibit PM.2, was three times confirmed with clear inscription thereon “17 Dec OK”. She was merely told that the ticket had been cancelled. She was previously, not communicated of this fact/development. The Respondent made no alternative travel plans for her. The Appellant, greatly embarrassed, was constrained to stay over without accommodation offered by the Respondent. She had also, through her father bought another electronic ticket from American Airlines on 18th December, 2007 for the sum of $3,200.00 to enable her travel on 19th December, 2007 through a longer route: Dallas – Forthworth – London Gatwick – Dubai – Lagos and back. The longer route took stressful 48 hours to complete.

On these facts, the Appellant’s attorney wrote, on 4th January, 2008, Exhibit PM.5, wherein she demanded refund of moneys paid for the two tickets. The Appellant, at all material times, communicated the Respondent through their said desk officer/employee, Clement Dolor. The Appellant handed to the Respondent, through the said Clement Dolor, the tickets for refund. By 25th January, 2008 it came to the Appellant’s knowledge that Clement Dolor had left the services of the Respondent and was operating his personal travel agency, Simba Travel & Tours. The Respondent through the said Simba Travel and Tours, as it is apparent that Clement Dolor was dealing with the Respondent through the said Simba Travel and Tours, unilaterally paid the sum of $1,777.00 USD purporting to be the refund of their (Respondent’s) own ticket. It withheld the ticket of the American Airline and made no effort to refund the money paid to purchase that ticket. Appellant’s attorney rejected the sum of $1,777 USD alleged to be the refund of the Respondent’s own ticket. Clement Dolor, PW.2, on behalf of Simba Travel & Tours collected the sum of $1,777 USD from the Respondent. When the Appellant’s attorney rejected the said sum of $1,777 USD, he directed the PW.2 to return it to the Respondent. The Respondent also refused to take the said sum of money from the PW.2.

At the suit of the Appellant the Federal High Court, in its judgment delivered on 15th November, 2010, the Court found that the Respondent’s “refusal to carry the (Appellant) from Dallas on the 17th December, 2007 amounts to a breach of contract of carriage with (her),” and that “No limitation to liability applies here”. Consequently, the trial Court ordered “the ticket refund to the (Appellant) should be in full without any deduction or charge,” and a “further grant of N2.5 million in general damages and N250,000.00 in legal costs” to the Appellant. Against these judgment and orders therein the Respondent lodged its appeal, as right, to the Court of Appeal wherein the Court found in favour of the Respondent.

Dissatisfied with the decision, the Appellant appealed to the Supreme Court.

ISSUES FOR DETERMINATION

The Court determined the appeal on these issues couched as follows:

“1. Whether the award of N2.5 Million as general damages for breach of contract by the trial Court against the respondent qualifies and or amounts to a non-compensatory damage contrary to the provisions of the Montreal Convention and the terms of contract between the parties.

2. Whether the Court of Appeal was right to have held that the limitations as to damages claimable under a contract for the carriage of passengers, baggage and cargos provided in the Montreal Convention was applicable to this case?
3. Whether the award of N2.5 Million general damages by the trial Court in favour of the appellant in addition to the refund of the exact amount expended by the appellant in purchasing an alternative ticket to Nigeria through longer routes amount to double compensation.
4. Whether the sum of N250,000.00 awarded by the lower trial Court as cost for the suit amounts to special damages and thus requires that there must be strict proof of same?
5. Whether the Court of Appeal has jurisdiction to have considered the issue raised by the respondent herein to wit – appealing on ground of cost filed without the leave of Court?
6. Whether the learned Justices of the Court of Appeal were right when they held that the appellant (respondent herein) is liable to pay back to the respondent (appellant herein) the sum of USD3200 (Three Thousand, Two Hundred US Dollars) less the amount already paid to Mr. Dolor when the said Clement Dolor does not have the authority of the appellant herein to receive any money whatsoever on her behalf.”

 

DECISION/HELD

On the whole, the Court found merit in the appeal and accordingly allowed same. On issues 1 – 5 the judgment of the Court of Appeal delivered on 11th April, 2014 in the appeal No. CA/L/1214/2010 was set aside. The judgment of the Federal High Court was restored, subject to the finding of fact by the Court that for the purpose of the refund of the flight tickets, Clement Dolor PW.1 was the agent of the Appellant.

 

RATIOS:

• AVIATION LAW- AIR CARRIER LIABILITY: Position of the law as regards liability for the breach of a fundamental term in a contract of carriage by air
• COMMERCIAL LAW- AGENCY: Meaning and nature of agency relationship
• DAMAGES- DOUBLE COMPENSATION: Instance(s) where an award of both special and general damages will not amount to double compensation
• JUDGMENT AND ORDER- AWARD OF COST: Principles of law as regards award of cost