ALHAJI ADEBAYO AZEEZ v. LUFTHANSA GERMAN AIRLINE
(2014)LCN/6959(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of March, 2014
CA/L/821/2008
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
ALHAJI ADEBAYO AZEEZ Appellant(s)
AND
LUFTHANSA GERMAN AIRLINE Respondent(s)
RATIO
DEFINITION OF A CONJUNCTION TICKET
Conjunction ticket is defined in Article 1 of the Lufthansa Conditions of Carriage (Exhibit H) as:
“…..a ticket issued to a passenger in conjunction with another ticket, which together constitute a single contract of carriage” PER IYIZOBA, J.C.A.
INTERPRETATION OF INFORMATION ON A CONJUNCTION TICKET
The information on each ticket is clear and the operative words in it should be given their simple and ordinary grammatical meanings. UBN v. Ozigi [1994] 3 NWLR (Pt.333) 385 at 404. PER IYIZOBA, J.C.A.
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering The Leading Judgment): This is an appeal against the judgment of R. N. Ukeje J. of the Federal High court, Lagos, in suit No FHC/L/CS/842/2000 delivered on the 5th day of December 2007. In the suit the Appellant as Plaintiff in his amended statement of claim dated 29/01/02 claimed the following reliefs:
(a) “The sum of ?11,700.00 (Eleven Thousand seven Hundred Pound sterling) or its naira equivalent as
damages for breach of contract of carriage entered into with the Defendant on 28 and 29 September, 1999 with the Defendant, its servants or agents in consequence of which the Defendant refused to transport the Plaintiff as contracted, and as a result, Plaintiff sustained losses and suffered severe stress and trauma in the hands of the Defendant.
(b) Cost of this action.”
The facts leading to the institution of the suit are as follows: on 28/9/09, the Appellant Mr. Adebayo Azeez through Goggins Travel Limited as part of a group of business people travelling to Seoul, Korea purchased a Lufthansa German Airlines flight ticket No.2209440147895 with special fare. The fare basis was 1APX1H ‘Exhibit A’. The round trip ticket was routed Lagos-Frankfurt-Seoul-Frankfurt-Lagos. The entire group was to leave Lagos on 12/10/99; arrive Frankfurt 13/10/99 and, without stopping over, leave Frankfurt 13/10/99; arrive Seoul same day; Leave Seoul 21/10/99; arrive Frankfurt 22/10/99 and without
stopping over, leave Frankfurt for Lagos same 22/10/99. As part of the requirements for a visa, the Korean Embassy insisted that the group must arrange direct return trip to Lagos, Nigeria with no stop over permitted. Because of the special fare, i.e. reduced tariff, the ticket was subject to several restrictions. These restrictions were endorsed on the ticket and also clearly stated on the front cover of the ticket. The ticket was valid for a minimum of 7 days and a maximum of 1 month. It was non-refundable; there was a rebooking fee of $100. On the ticket the letter ‘X’ was clearly marked next to the Frankfurt – Seoul and Frankfurt Lagos legs. This means no stopovers permitted. Stopovers and agreed stopping places are defined in Art. iv of the Conditions of Carriage Exhibit H.
On 30/9/99 (that is, two days after purchasing ticket No.2209440147895, the Appellant independently purchased another fight ticket No. 2209440147603, Exhibit A1 with a different fare basis, BPX3MOE, a different booking reference, different conditions and a different description of the passenger. This second ticket bore the name Alhaji Adebayo Azeez. The first ticket was in the name of Mr. Adebayo Azeez. This second ticket had a validity period of 3 months and was routed on Lufthansa Airlines Frankfurt-London-Frankfurt. That is, depart Frankfurt for London on 21/10/99; and depart London for Frankfurt on 24/10/99. The Appellant bought this ticket independently of the group going on a trade mission. He made no reference to his prior booking or reservation. He provided the dates of travel himself to the Agent.
The Appellant was airlifted to Seoul with the group as contracted, returned to Frankfurt as agreed same day but upon arrival at Frankfurt, instead of travelling directly to Lagos with the group, he flew to London using the separate ticket. Every other member of the group returned to Lagos on the flight. As a consequence of the Appellant’s failure to present himself for embarkation on 22/10/99, the Defendant’s flight left Frankfurt for Lagos with an empty seat precipitated by the plaintiff’s failure to turn up for the flight.
The Respondent alleged that on 19/11/99 (27 days after he was billed to travel from Frankfurt to Lagos), the Appellant visited their London office to report his purported inability to travel on 22/10/99 from Frankfurt to Lagos; and as an excuse presented a medical report dated 18/11/99 from a London-based doctor, Dr. M. Hashim which reads:
“Mr. Azeez consulted me for acute back pain on 7.11.99. I adviced (sic) him to take strong pain-killer and take rest.
He consulted me again today and he is fit for travel”
The Respondent further alleged that on 19/11/99 when the Appellant came to their London office, he requested to travel from Frankfurt on Ticket No. 2209440147895 but was advised to pay the sum of ?919.00 to upgrade the ticket which was a special fare ticket with restrictions and conditions. But he refused to do same; left their London office and allegedly purchased a British Airways ticket to Lagos.
The Appellant then instituted this action alleging breach of contract; claiming that the Ticket No. 2209440147895 and ticket No.2209440147603 constitute conjunction tickets and that the Respondent refused to transport him by air back to Lagos. He claimed the reliefs set out above.
Pleadings were exchanged by the parties, with the plaintiff amending his Statement of Claim. The lower court heard oral testimony from the parties; admitted documents in evidence. Judgment was delivered on 5/12/07 dismissing the Appellant’s case.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal with four grounds of appeal. The Appellant’s brief of argument was settled by Nasiri Tijani Esq. and from the four grounds he distilled three issues for determination as follows:
(i) Whether the two tickets issued by the Defendant/Respondent to the Plaintiff/Appellant (Exhibits “A and A1″) were issued in conjunction with each other so as to constitute a single contract of carriage. (Ground one in the Notice of Appeal).
(ii) Whether the Defendant/Respondent breached the contract of Carriage by Air between the Plaintiff/Appellant and Defendant/Respondent. (Ground two and four in the Notice of Appeal).
(iii) Whether the Learned Trial Judge was right in failing to award damages in favour of the Plaintiff/Appellant for breach of contract of Carriage by the Defendant/Respondent. (Ground three and four in the Notice of Appeal).
Learned counsel for the Respondent, L. Fubara Anga Esq. in their Respondent’s brief of argument formulated two issues for determination as follows:
(1) whether the lower court was right when it found and concluded that the two Tickets Nos. 2209440147895 and 2209440147603 belonging to the Appellant do not constitute a single contract of carriage between the Appellant and the Respondent. Ground 1
(2) whether the lower court was right when it held that the Respondent did not breach the contract of carriage between the Appellant and the Respondent and therefore not liable to the Appellant. Grounds 2, 3 and 4.
The two issues formulated by the Respondent are the same with the Appellants issues 1 & 2. Appellant’s issue 3 will as the Respondent did be subsumed into his issue 2 as its relevance will be determined by the outcome of issue 2. I shall consequently adopt the Appellants issues 1 & 2 in the determination of this appeal.
ISSUE 1:
Whether the two tickets issued by the Defendant/Respondent to the Plaintiff/Appellant (Exhibits ‘A and A1”) were issued in conjunction with each other so as to constitute a single contract of carriage. (Ground one in the Notice of Appeal).
APPELLANT’S ARGUMENTS:
Mr. Tijani on this issue submitted that the learned trial judge erred in holding that the two tickets were not conjunction tickets in view of the facts and evidence presented. Counsel submitted that the learned trial judge had relied on the definition of conjunction tickets in Exhibit “H” as “a ticket issued to a passenger in conjunction with another ticket which together constitute a single contract of carriage”. Counsel submitted that the Travel Industry Dictionary defined conjunction tickets as “two or more tickets used on a single itinerary”; and Itinerary as: (1) The route of travel; (2) In an airline booking, a list of flights, times e.t.c. (3) A detailed listing of all transportation, lodging and activities on a trip. Learned counsel submitted that “A” – “A1” constitute conjunction tickets within the above definitions. He argued that they were issued together in Lagos and that Exhibit “A” had the route Frankfurt – London – Frankfurt; whereas Exhibit “A” had the route Lagos – Frankfurt – Seoul – Frankfurt – Lagos. Counsel argued that since the Appellant was in Lagos at all material times, Exhibit “A” will only become relevant if it is related to another journey or ticket. Otherwise, how will he get to Frankfurt to start a journey that has the route as Frankfurt – London – Frankfurt?
Learned counsel argued that Goggins Travels Limited from whom he bought the tickets was at all material times the agent of the Respondent, a disclosed principal and that they wrongly booked the appellant resulting in his inability to travel utilizing Exhibit “A1’. Counsel submitted that it is trite law that where an agent acts on behalf of a disclosed principal, such a disclosed principal is the proper party in an action for damages for the negligence of the agent. Counsel submitted that the Respondent cannot deny liability for the damage caused by its agent. He relied on (1) Article 25(2) of the Carriage by Air (Colonies, Protectorates and Trust Territories of order, 1953; (2) Oshevire vs. British Caledonian Airways Ltd. (1990) 7 NWLR (Pt.163) 507 (3) Cameroun Airlines v. Abdulkareem (2003) 11 NWLR (Pt.830) 1. He urged the court to hold that the learned trial Judge was wrong in holding that Exhibits A & A1 were not conjunction tickets.
RESPONDENT’S ARGUMENTS ON ISSUE ONE:
Mr. Anga in reply to the arguments of the Appellant on issue one submitted that Ticket No. 2209440147895, Exhibit A was a round trip ticket for a single contract of carriage purchased as part of a group with special discounted fare and subject to conditions specified in the Respondent’s tariff regulations and on the ticket.
The conditions are:
(a) the period of validity of the ticket was one month;
(b) there is no stopover permitted during the course of the journey; and
(c) the Appellant was to travel on the exact dates and time specified on the ticket; and
(d) amount paid is non-refundable.
Counsel submitted that Article 1 of the Respondent’s General conditions of carriage (passenger and Baggage) tendered in evidence at the lower court as Exhibit H the contents of which are reproduced at page 99 of the Record of appeal “Conjunction ticket” is defined as “a ticket issued to a passenger in conjunction with another ticket, which together constitute a single contract of carriage”. Counsel submitted that the two tickets, Exhibits A and A1 are not conjunction tickets within the definition of the phrase above. The two tickets were issued in favour of Adebayo Azeez at separate times with two independent round trip itineries. Whilst Ticket No. 2209440147895 was paid for and issued through the Korean Embassy on 28 September 1999, Ticket No. 22090440147603 was issued directly to the Appellant on 30 September 1999 for a totally different round trip between Frankfurt and London. Counsel submitted that it is thus not correct as stated in the Appellant’s brief that both tickets were issued by the Defendant “together”. Counsel submitted that at page 47 of the Record of Appeal the Appellant said under examination in chief that he bought the tickets on 28 September 1999 and 30 September 2001(sic 1999). Also at page 75, the Appellant varied his testimony on page 47 and now stated that he did not purchase the first ticket himself but “it was made through the Korean Embassy”. This contention counsel argued confirms that the first ticket was issued as part of a group purchase. Counsel further submitted that the onus of proving that the tickets constitute conjunction ticket lies on the Appellant who alleges same. Counsel referred to section 135 of the Evidence Act, and submitted that the Appellant failed to show either by his pleadings, oral testimony or evidence that the two tickets constitute conjunction tickets.
RESOLUTION:
Conjunction ticket is defined in Article 1 of the Lufthansa Conditions of Carriage (Exhibit H) as:
“…..a ticket issued to a passenger in conjunction with another ticket, which together constitute a single contract of carriage”Respondent’s witness DW1 during cross-examination explained that conjunction tickets are two tickets with the same itineraries which will reflect each other’s number to show that they are conjunction tickets; but the columns provided for “conjunction tickets” are blank in Ticket No. 2209440147895 as well as Ticket No.22090440147603. Neither the Appellant nor his counsel can contradict or vary the express contents of the tickets. As submitted by counsel and which submission I agree with, conjunction tickets are serially numbered, issued to the same purchaser at the same time, with same class, and every segment constitutes a single part of one complete trip. In the same vein, the conjunction ticket must unequivocally refer to same passenger. In this case, whilst ticket No.2209440L47895 has “Mr.” as the title of the Appellant’s name; Ticket No.22090440147603 has “Alhaji” as the prefix to his name. The Appellant’s contention that the difference in the names is not material is with respect misconceived. If indeed the two tickets were conjunction tickets the names would not have varied. The column on Class of Flight on Ticket No.2209440147895 is “Class L”, that of Ticket No. 22090440147603 is “Class B”. These differences show that the two tickets are independent of each other. The information on each ticket is clear and the operative words in it should be given their simple and ordinary grammatical meanings. UBN v. Ozigi [1994] 3 NWLR (Pt.333) 385 at 404.To the knowledge of the Appellant, Ticket No.2209440147895 was valid for only 1 month, as testified to by the Appellant (as PW1) under examination in chief on page 73 of the Record. The 1 month validity of the ticket is from the date of purchase, that is, from 28 September 1999. The Appellant did not present himself to be flown to Lagos from Frankfurt on 22 October 1999. Instead, he took another flight in contravention of the “stopover rule” in Ticket No.2209440147895 to go to London with the aim of returning to Frankfurt outside the time frame allowed by the said ticket with special fare and conditions. The appellant tried to circumvent the conditions upon which a special discounted fare was agreed. There was no single contract contemplated by the two tickets. Even by the definition of conjunction ticket in the Travel Industry Dictionary as “two or more tickets used on a single itinerary accepted by the Appellant, the two tickets do not qualify as conjunction tickets because they have different itinerary. If they were in respect of the same transaction, the names of the customer would have been the same; the date of purchase of the tickets would have been the same; the routes, dates and timing of the flights would have been in sequences; the class of flights on the two tickets would have been the same; and the second ticket (Ticket No.22090440147603) would have expressly stated or made provision for its relationship with Ticket No. 2209440147895 by adding “conjunction ticket” on the column provided. It cannot be true that the reason the Appellant could not utilize Exhibit A1 is due to wrong booking. Clearly, the Appellant utilised the ticket and flew to London from Frankfurt and did not complain of wrong booking; on the day he ought to be at Frankfurt to take a flight to Lagos, he was still in London. From the medical report he sent to the Respondent, by 7/11/99 up to 18/11/99 the Appellant was still in London. The Respondent offered to fly him to Lagos on condition that he pays additional fare for the flight but this he turned down. I hold that the two Tickets No’s 2209440147895 and 22090440147603 do not constitute a single contract of carriage. what makes it clear beyond any doubt that the two tickets do not constitute a single contract of carriage is the fact that by ticket No 2209440147895 the appellant was to leave Frankfurt for Lagos on 22/10/99 by 13.55 pm while by ticket no 22090440147603 the Appellant was to leave London for Frankfurt on 24/10/99 at 07.00 hrs. There cannot be such discrepancy in conjunction tickets that constitute a single contract of carriage. The itinerary, timing and sequence of each leg of the journey will flow naturally into each other. The lower court was very right when it held that the two tickets were not issued in conjunction with each other and therefore did not constitute a single contract of carriage. Issue one is resolved against the Appellant and in favour of the Respondent.
ISSUE TWO:
Whether the lower court was right when it held that the Respondent did not breach the contract of carriage between the Appellant and the Respondent and therefore not liable to the Appellant. Grounds 2, 3 and 4.
APPELLANT’S ARGUMENTS:
Mr. Tijani for the Appellant on this issue submitted that in a contract of Carriage by Air, the Respondent has a duty to take the Appellant to his destination. The destination of the Appellant as stated in Exhibit “A” was Lagos – Frankfurt – Seoul – Frankfurt – Lagos. By Exhibit A1, the Appellant journey was Frankfurt – Landon – Frankfurt. Counsel submitted that from Exhibit “A” the Respondent was under contract to take the Appellant to Seoul and London and back to Lagos. Where due to the negligence of the Respondent, this purpose fails; there is a breach of contract. Comm. For works Benue v. DEVCON (1988) 8 NWLR (Pt.83) 407.
Learned Counsel submitted that the Respondent duly took the Appellant to Seoul but failed to return him to Lagos as contemplated by the contract. Hence the Appellant had to purchase another ticket – Exhibit “D”. He urged the court to hold that there was a breach of contract of carriage. Counsel submitted that the defences of the Respondent were that:
(1) Exhibit “A” and “A1” were not conjunction tickets.
(2) Exhibit “A’ did not permit the Appellant to have a stopover.
Counsel submitted that reliance was placed on Article IV of Exhibit “H” the conditions of carriage (Passenger and Baggage): In respect of the 1st defence counsel adopted the submissions on issue one.
In respect of the second defence, “no provision for stopover in Exhibit A’, counsel submitted that there is nothing on the face of Exhibit “A” which prohibited stopover. Furthermore, with the issuance of Exhibit “A” by the Respondent, it was contemplated that the Plaintiff will stopover in London. Counsel submitted that Article iv in Exhibit “H” is irrelevant to this case; and that its full provisions were not brought to the attention of the Appellant. The Respondent cannot therefore rely on those provisions. Counsel urged the court to dismiss this defence and to hold that the trial judge ought to have on the evidence before the court found that the Respondent breached the contract of carriage.
RESPONDENT’S ARGUMENTS:
Mr. Anga in reply on issue two relying on the case of Nwobi v. Anukam [2001] 14 WRN 38 submitted that it is the duty of the court to construe a written contract by the express terms of the contract. Counsel submitted that it is not in doubt that the Respondent’s duty to airlift the Appellant in the itinerary Lagos-Frankfurt-Seoul-Lagos is subject to the terms of the contract binding on the two parties in Exhibit A. These conditions are:
(a) the period of validity of the ticket was one month;
(b) there is no stop-over permitted during the course of the journey; and
(c) the Appellant was to travel on the exact dates and time specified on the ticket; and
(d) Amount paid was non refundable
Counsel submitted that to the knowledge and admission of the Appellant, the validity of Ticket No. 2209440147895 is one month from the date of issuance and that going by the validity period of the ticket, the Appellant was clearly outside the validity period when he did not present himself to be airlifted from Frankfurt to Lagos (assuming without conceding that stopover was allowed) within the allowed time frame but only presented himself in the offices of the Respondent on 19 November 1999.
Counsel submitted that it is not the case of the Appellant that the Respondent prevented him from presenting himself to be airlifted from Frankfurt to Lagos on 22 October 1999 or within one month of the purchase of the ticket. The Respondent’s airline left Frankfurt to Lagos on 22/11/99 with an empty seat due to the Appellant’s absence on the said day. Thus, the appellant’s argument that “…the defendant duly took the Plaintiff to Seoul but failed to return him to Lagos as contemplated by the contract…” has no evidential basis.
On the issue of Stop-Over, Counsel submitted that contrary to the conditions connected with Ticket No.2209440147895, the Appellant stopped over and never denied the fact as averred in paragraph 11 of the Statement of Defence. The said paragraph on page 36 of the Records provides thus:
“With respect to paragraph 12 of the statement of claim, the defendant denies that the plaintiff’s failure to return to Frankfurt from London was due to ill health and medical advice as alleged. The defendant states further that:
(i) The plaintiff using ticket No.2209440147895, left Seoul for Lagos via Frankfurt on October 21, 1999. From Frankfurt, he was also scheduled to continue his journey to Lagos on October 22, 1999.
(ii) Instead of continuing his journey to Lagos as aforesaid, the plaintiff using ticket No.2209044147603 immediately proceeded to London on arrival at Frankfurt. By the said ticket he was also scheduled to return to Frankfurt on October 24, 1999.
(iii) In view of the dates referred to above, the plaintiff could not have returned to Frankfurt by October 22, 1999 to catch the Frankfurt-Lagos flight which was scheduled for the same day”
Counsel submitted that the Appellant knew that the ticket No.2209440147895 was a special fare ticket with travel restrictions but evasively failed to admit or deny in his oral evidence the fact that the special ticket did not permit “stopover”. Counsel referred to the evidence of the appellant on page 76 of the Record, where the following ensued in the course of cross-examination:
Question: So, I can rightly assume that you are an experienced traveller.
Answer: Yes.
Question: Take a look at the ticket, Exhibit A-A1. Tell this court the conditions specified on the face of the tickets as pasted.
Answer: Reads: (That the ticket is a special fare ticket which involves travel restrictions, etc)
Question: Please read the itinerary from the ticket.
Answer: I have been travelling with Lufthansa. I trust the airline.
Question: Read out the itinerary.
Answer: Lagos – Frankfurt – Lagos
Question: What date was the 1st ticket (Exhibit A) issued.
Answer: 28th September 1999.
Question: When did you buy the 2nd Ticket
Answer: 30th September 2004. (28th and 30th)
Question: When you bought the ticket did you check the date on it.
Answer: I did not. I have been travelling with Lufthansa and I have never had this kind of problem before, I trust the Airline.
Question: Are you aware that special tickets do not allow stopover.
Answer: Why should they collect my money? Everything is under two weeks.
Learned counsel submitted relying on the case of Akintola v. Solano [1986] 2 NWLR (Pt.24) 598 at 624, that failure to admit or deny a given fact in pleadings, is not sufficient denial, but tantamount to an admission of the fact. Counsel submitted that whether the Appellant failed to expressly admit that the ticket (Exhibit A) does not allow stopover or not, it is very clear on the face of the ticket by the restriction marked (x) in the column for (X/O) that stopover was not permitted. There is further no evidence that the parties agreed to any stopover. Article IV of the Contract of Carriage on page 103 of the Record.
Counsel submitted that what the Respondent had contracted to do was to airlift the Appellant from Frankfurt to Lagos on 22 October 1999; but the Appellant was not present to be airlifted. Thus the Respondent without any contradiction made its flight from Frankfurt to Lagos at the scheduled time for the group with a vacant seat meant for the Appellant. Counsel submitted that if for the purpose of argument (though not conceded) Ticket No.220440147895 allowed stopover; and Ticket No. 2209044147603 was used by the Appellant to take a flight from Frankfurt to London, the fact remains that on the day due for his flight from Frankfurt to Lagos under Ticket No.2209440147895, he was not available to be flown accordingly. Learned counsel submitted that the Respondent was in no way responsible for the failure of the Appellant to be airlifted to Lagos as agreed to by the parties. Learned counsel urged the court to dismiss the appeal as unmeritorious and to uphold the judgment of the lower court.
RESOLUTION:
This appeal is indeed a very simple one. The resolution of issue 1 above has more or less determined this appeal. If the two tickets were not issued in conjunction with each other; and did not constitute a single contract of carriage, then the Respondent could not have been in breach of the contract of carriage with the Appellant. The reason is obvious. The Appellant did not present himself in Frankfurt on 22/10/99 at 13.35 to travel from Frankfurt to Lagos as contracted with the Respondent in accordance with ticket no.2209440147895 (Exhibit A). The Appellant’s seat was empty from Frankfurt to Lagos as the Appellant made no effort to cancel the flight. The Appellant did not also present himself in Frankfurt on 24/10/99 to travel to Lagos as contracted with the Respondent in accordance with ticket no. 2209044147603 (Exhibit A1). Although even if he did, as at that point in time he had no ticket to travel from Frankfurt to Lagos. How is the Respondent to be blamed for this problem the Appellant created for himself Under cross-examination, the Appellant testified that he is literate; that his ticket was booked through the Korean Embassy because they were going for a trade fair; that the date of his itinerary was specified on the ticket; that he had been travelling for 35 years and was an experienced traveller. He read out the conditions specified on the face of his first ticket (Exhibit A) that the ticket was a special ticket which involved travel restrictions. The ticket was indeed a specially discounted ticket and specifically provided for no stop-over. Contrary to the contention of the appellant, that there is nothing on the face of Exhibit of “A” which prohibited stopover, it is very clear on the face of the ticket by the restriction marked (X) in the column for (X/O) that stopover was not permitted. The entire group who went for the trade fair returned to Lagos in accordance with their itinerary exactly as planned. The Appellant was the only one who on his own bought another ticket to London and in spite of his experience as a traveller did not check the date on the second ticket he bought to ensure that the date fitted in with the dates on the first ticket in terms of the date of return to Lagos. He claimed he was not responsible for the mix-up in dates; that it was the Respondent’s agent who booked him on wrong dates; but finally nailed himself by admitting that he gave the dates of his travel time to the airline. After all it is the responsibility of the appellant to supply all relevant information on his proposed trip to the Respondent’s agent to enable him secure his booking accordingly. These were all the factors the learned trial Judge took into consideration in arriving at the conclusion that “the defendant is not in breach of the contract of carriage between Plaintiff and the Defendant, created by the conflict in the two tickets Exhibits A and A1 jointly or separately”. I am in total agreement with the learned trial Judge. His reasoning cannot be faulted. Issue two is resolved against the Appellant and in favour of the Respondent. Although the provisions of the Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953 which extended and applied the provisions of the Warsaw Convention to Nigeria is a valid enactment and has the force of law in Nigeria. Ibidapo v Lufthansa Airlines (1994) 1 NWLR (Pt.362) 355; its provision are of no assistance to the appellant in the circumstances of his case.
In view of the resolution of issues one and two against the Appellant, the obvious answer to the Appellant’s issue three (whether the Learned Trial Judge was right in failing to award damages in favour of the Plaintiff/Appellant for breach of contract of Carriage by the Defendant/Respondent) is a resounding “yes”. The Respondent was not in breach. The Appellant is consequently not entitled to any damages. This appeal is obviously lacking in merit. It is accordingly dismissed. The judgment of R. N. Ukeje J. of the Federal High court, Lagos, in suit No.FHC/L/CS/842/2000 delivered on the 5th day of December 2007 is hereby affirmed. The Respondent is entitled to costs assessed at N50,000.00
SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother CHINWE EUGENIA IYIZOBA, JCA.
I agree with the reasoning and conclusion reached therein and have nothing extra to add.
I too join my learned brother in holding that this appeal is totally unmeritorious. It is also accordingly dismissed by me. The judgment of R. N. Ukeje J. of the Federal High Court, Lagos, in Suit No: FHC/L/842/2000 delivered on the 5th day of December, 2007 is hereby affirmed. The Respondent is entitled to costs assessed at N50,000.00
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I read in advance the judgment prepared by my learned brother, Chinwe Eugenia Iyizoba, J.C.A., with which I agree and have nothing useful to add to the said lucid judgment.
Appearances
Nasiru Tijani Esq.For Appellant
AND
L. Fubara Anga Esq. with George Gom Esq. and Ibifubara Berenibara Esq.For Respondent
