DELTA AIRLINES v. SHIMA JOSEF & ANOR
(2019)LCN/13862(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2019
CA/L/1164/2016
RATIO
JURISDICTION”: CONCURRENT JURISDICTION BETWEEN THE FEDERAL AND STATE HIGH COURTS IN AVIATION MATTERS
Can this make a difference on the issue of jurisdiction between the State High Court and Federal High Court. Let me take an excursion to some cases in this light. In Harka Air Services (Nig.) Ltd vs. Keazor (2011) 13 NWLR (Pt. 1264) 320, (2011) LPELR-1353 (SC), the apex Court per Adekeye JSC at page 30 held as follows:
By virtue of Article 17 of the Warsaw Convention, the Carrier is liable for the damages sustained in the event of the death or wounding of a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. To establish liability, the claimant must prove that:
(a) The passenger must have been wounded or suffered bodily injury
(b) The injury must have arisen from the accident
(c) The accident must have occurred on board the aircraft or during the course of embarking or disembarking.?
This seems to be the position of the Court in KLM Royal Dutch Airlines vs. Taher (2014) 3 NWLR (Pt. 1393) 137 @ 193-194 where it was held:
?It is clear by Section 7 (1) of the Federal High Court Act that carriage of passengers and goods by air are within the exclusive jurisdiction of the Federal High Court, therefore the jurisdiction of the Federal High Court extends to all aspects of aviation and carriage of passengers and goods by air. In the instant case, the respondent had not boarded the aircraft when the harm complained of took place. The harm was not connected with the aircraft itself, as embarkation had not started, the carriage by aircraft had not begun, and therefore, it is completely outside the parameter of carriage by air. Even though the contract had been entered into, the execution of the same had not begun. If the respondent had embarked on the aircraft or boarded same that is where the Federal High Court would have come in.
The above position was pronounced upon by this Court in KLM Royal Dutch Airline vs. Idehen (2017) LPELR- 43575 (CA). This Court per Nimpar, JCA in the said case went on to make a distinction between a one way ticket and a return ticket in determining the issue of the jurisdiction on a matter of aviation. This Court held that once the passenger has embarked on the first leg of the return trip, problem arising from the second leg even if it has no connection with an aircraft, the appropriate Court to assume jurisdiction is the Federal High Court. I will quote in great length the decision of this Court. Nimpar, JCA at pages 13-19 of the judgment thus:
The 1999 Constitution donated jurisdiction to the Federal High Court in areas circumscribed therein, by Section 251(1) which provides as follows:
“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…”
The section goes on to set out in Sub-paragraphs (a) – (r) the matters in respect of which such exclusive jurisdiction is conferred on the Federal High Court. Subparagraph (k) deals with aviation and safety of aircraft. The Federal High Court Act provides subject matter list and by Section 7(1) (k) it states that aviation and safety of aircraft comes under the Federal High Court’s jurisdiction.
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 was fulfilled without any hitch. If the contract had not been part performed, then the claim will come under the State High Court. The situation here is not too different from the facts in ALHAJI ADEBAYO AZEEZ vs. LUFTHANSA GERMAN AIRLINE (2014) LPELR-22416 where the breach was in the course of a journey and the ticket was activated but the claimant broke the seamless journey midway. That was in the course of a return journey. The claim of the Respondent has something to do with an aircraft because he had been in the aircraft going and his effort to return through the Appellant’s aircraft was aborted. The issue should have been one for the Respondent to pay surcharge fees for a change of the return date mentioned in the ticket but instead of a surcharge the return ticket was cancelled without an option to revalidate. It is therefore obvious that the contract was part performed and has transcended a simple contract at that stage and therefore jurisdiction must fall under the Federal High Court and not the State High Court. The Respondent had entered the aircraft belonging to the Appellant but his contract to reenter for return was denied?.
His lordship continues in the judgment as follows: I agree with the Respondent that the cancellation of the flight ticket and imposition of surcharge is an aviation matter under the purview of the Montreal Convention and Civil Aviation Act. The Montreal Convention and Civil Aviation Act has nothing to do with matters of simple contract but where a contract for carriage by air is part performed and the party had entered the aircraft such as this and flown to the United States, the Appellant by virtue of the ticket, is duty bound to return him back to Lagos since the ticket was a return ticket. Gladly, the Respondent had spelt out the scope of the Montreal Convention 1999 to wit:
1. This convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.
2. For the purposes of this Convention, the expression “international carriage” means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transshipment are situated either within the territories of two states parties, or within the territory of a single state party if there is an agreed stopping place within the territory of another State, even if that state is not a state party. Carriage between two points within the territory of a single state party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.
It is clear therefore that the convention applies to instances covering the period from the place of departure to the place of destination upon dis-embarkment and return. This is different from a NO SHOW situation where the passenger simply does not appear to be carried. The Respondent was willing to appear but on a date other than on the ticket and had communicated so to the Appellant via Exhibit 10 and 11. I therefore agree that the issue can come under aviation matters to be decided upon by the Federal High Court.
For emphasis, let me restate that the journey from Lagos to Boston was one leg of the contract which had been finalized, concluded and closed. The ticket was Lagos-Boston-Lagos, the different dates notwithstanding, it was one return journey. The return back to Lagos did not amount to a fresh contract; the two legs are intricately related and subsumed into one contract.
In the case of KLM ROYAL DUTCH AIRLINES vs. TAHER (2014) 3 NWLR (Pt. 1393) 137, the Court held thus:
“For proper elucidation of this issue, it is necessary to appreciate the meaning ascribed to the terms “aviation” and “carriage”. Aviation has been defined as “(1) the operation of aircraft, (2) the design, development, production or use of aircraft. The word “carriage” is defined in Oxford Advanced Learner’s Dictionary to include the art of transporting of goods etc.” The Webster’s Dictionary also described it as the act or cost of carrying, it includes “the act or process of transporting or carriage”, or “the act of conveying”. Therefore, for there to be a carriage of passenger by air, the passenger must have entered or boarded the aircraft and be in the process of being carried or conveyed. It is elementary that if there has been no act of carrying or conveying someone in an aircraft, the person cannot definitely say there has been a carriage. The passenger must have connection with an “aircraft?. In the Nigerian con, the word “embarkation” does not include any period when the passenger still has to go through a check or control which results in refusal of entry. It means the boarding of an aircraft for the purpose of commencing a flight. So if the period of carriage commences from the time of embarkation of person on board the aircraft, it follows that any period preceding the same shall not be counted for carriage of person by air.”
Considering the fact that the contract the Respondent had with the Appellant was a return ticket and not a one way ticket, the cancellation midway before the return to final destination and was never revalidated, the issue of contract of carriage under the Aviation laws can apply. I resolve this issue against the Appellant to hold that in the peculiar facts of this appeal, the Federal High Court had jurisdiction to hear the matter and give judgment.?
In the same judgment, Obaseki-Adejumo, JCA at page 36-37 held a similar view as follows:
The contract on Air Carriage is fee-based actual adhesion contract. When a passenger has purchased a ticket, he gives his consent to the terms, conditions and suggested route hereof. Likewise the airline is bound by the relevant terms and conditions applicable to it. The contract is certified by the passenger’s ticket and baggage check, of which these terms and notifications are a part. Thus, where as in the instant case, a passenger purchase a return (to-way) ticket and the first leg of the carriage had taken, before dispute arose as to the return (second) of the journey, it will clearly be a manifest misapprehension of the position of the law to say that the contract between the parties is a mere simple contract. Far from it!
The twin nature of the obligations arising under the contract vis–vis the dispute which arose from the second leg of the contract of carriage evidently brings this case within the exclusive jurisdiction of the Federal High Court, with the applicability of the Montreal Convention and Civil Aviation Act.?
The issue here therefore is whether a return ticket is a single contract or each leg can be said to constitute a new contract. This is a very fundamental issue to consider whether the lower Court has jurisdiction. If I hold that the return ticket is a single contract, then, the Court with jurisdiction in this matter will be the Federal High Court in which case the appeal will be allowed. This is because; the embarkment in Lagos on ticket no 0-0062143061667-1 will suffice to bring this action under the Federal High Court as that will satisfy the requirement of embarkment as there is a part performance. On the other hand, if I hold that the return leg from Atlanta to Lagos constitutes a different contract, then the appeal will fail as there was no embarkment from the airport in Atlanta. Ticket no: 0-0062143061667-1 was bought in Lagos as a return ticket. It was bought at the same time. I can take judicial notice of the fact that, since it is one ticket, the ticket no is the same for both legs. The same ticket covers both legs of the trip and therefore it is a single contract which is not severable. The Booking Reference of a ticket in a trip contains the profile of the passenger which has the name of the passenger and the itinerary of the passenger. The booking reference is the first step towards booking a ticket and when the ticket is to be issued, the booking reference will be imputed into the system which will be used to generate
