Emirate Airline V. Miss Promise Mekwunye (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the Judgment of Archibong J of the Federal High Court Lagos Division delivered on 15/11/10 wherein the learned trial Judge held inter alia that the Appellant’s refusal to carry the Respondent in its aircraft from Dallas to Lagos on the 17th day of December 2007 amounted to a breach of its contract of carriage with the Respondent and that no limitation of liability applied to the contract.

The Respondent as Plaintiff on 7/5/07 bought the appellant’s airline ticket (electronic) for the sum of US $2,067 (Two thousand and sixty seven dollars) to enable her travel from Dallas – Houston -Dubai- Lagos and back. The Respondent alleged that the said ticket exhibit “PM2” was duly confirmed and had on its face the inscription “17 Dec Ok”. When the respondent turned up at the airport to travel on 17/12/07, the Appellant denied her boarding and made no alternative provision for her carriage.

The respondent’s father who was her attorney in the court below called the appellant’s office at the airport in the USA to find out what went wrong and why the respondent was denied boarding. The Respondent alleged the appellant offered no reason for their failure to carry the Respondent and failed also to provide an alternative aircraft. The respondent’s father then had to quickly arrange to purchase another electronic ticket from American Airlines on 18/12/07 for the sum of US$3,200 (three thousand two hundred dollars) and routed Dallas – Fort Worth -London Gatwick-Dubai -Lagos and back.

The Respondent eventually travelled on 19/12/07 and then sought from the Appellant a refund of the two (2) tickets (Emirates and American Airlines tickets). The Respondent’s attorney wrote to the appellant demanding a refund of the money paid for the two (2) tickets. Simba Travels & Tours, an agency through whom the tickets were bought on 25/1/08 also applied for the refund and handed the two original electronic tickets to the Appellant.

The Appellant, according to the respondent unilaterally and without authorization paid to a staff of Simba Travel & Tours Ltd the refund of its own ticket less certain charges and withheld the ticket of American Airline without refunding the money. The respondent’s attorney immediately rejected the refund and directed Mr Clement Dolor, of Simba Travels & Tours who had testified as PW2 to return the money but the appellant refused to take back the money.

The respondent then by a Writ of Summons dated 18/9/08 and an amended Statement of Claim dated 20/3/09 sued the Appellant as Defendant claiming as follows:

i. A Declaration that the refusal of the Defendant to carry the Plaintiff from Dallas-Houston-Dubai-Lagos on the international flight amounts to a breach of contract of carriage by air.

ii. An order of this court that the Defendant pays the sum of USD3, 200 (Three Thousand, Two Hundred US Dollars) being special damages or the cost of the alternative arrangement the Plaintiff made in buying another airline ticket from Dallas F worth-London-Gatwick-Lagos.

iii. An order for the payment of N10, 000,000,00 (Ten Million Naira) being general damages for the breach of contract of carriage.

iv. An order for the payment of the sum of N1, 000,000.00 being the cost of instituting this action.

The Defendant in response filed a Statement of defence dated 8/5/09 denying being in breach of the contract of carriage and claiming that the Emirates Conditions of Carriage envisage that denial of boarding can occur and has adequate provisions for the liability and entitlement of the parties. At the hearing, the Respondent called two witnesses and tendered 6 exhibits while the Defendant called one witness and tendered 3 exhibits.

The parties thereafter filed their final written addresses which were duly adopted. The Court delivered its judgment on 15/11/10 in which it found that the contract between the parties was an International Contract of Carriage by air and governed by the Montreal Convention as domesticated by Civil Aviation Act 2006 and that the particular contract of carriage was underpinned by the Conditions of Carriage of passengers and baggage of the Defendant’s airline.

The Court held that the Defendant’s refusal to carry the Plaintiff from Dallas on the 17th of December 2007 amounted to a breach of its Contract of Carriage with the Plaintiff and that no limitation of liability applied to the contract and therefore awarded to the Plaintiff (i) A ticket refund in full without any deduction or charge (ii) N2.5M damages & (iii) N250, 000 legal cost.