The Beginnings of Aviation Law in Nigeria
Carriage by air was first governed in Nigeria by the Warsaw Convention. As the treaty practice of the
United Kingdom of Great Britain and Northern Ireland was based on the duality doctrine, the Warsaw
Convention, signed on October 12, 1929, did not have legal force within the United Kingdom until
Parliament passed legislation to implement it. This was done by virtue of the Carriage by Air Act, 1932.
Nigeria was then a colony and protectorate under the authority of the United Kingdom of Great Britain
and Northern Ireland and to extend the provisions of Sections 1 and 2 of the Carriage by Air Act, 1932,
to the colony and protectorate of Nigeria, the was an Imperial Order-in-council, viz the 1953 Order 1.
Accordingly, by virtue of the 1953 order Nigeria inherited the Warsaw convention at independence.
In 2002, Nigeria ratified the Montreal Convention and adopted its provisions into national law by virtue
of Section 48 of the Civil Aviation Act 2006. Thus the Montreal convention, to the extent of its
ratification through the act, governs the rights and liabilities of carriers, passengers, consignors,
consignees, and other persons. It applies to both international and domestic carriage.
In succeeding paragraphs, this work will take an in-depth look at the approach and factors considered
by the Nigerian Court in circumventing the limits of liability set by the air conventions or, in other
instances, abandon the air carriage and treat the contract of carriage as a simple breach of contract.
The Recent Trend and perspectives of Nigerian Courts on Breaking the Limits of Air Carrier’s
Liability
There are a few Nigerian case laws wherein Nigerian courts have examined the issue of breaking the
liability limit in both the Warsaw Convention and Montreal Convention. This article has chosen the most
recent decisions and examined below how the courts have interpreted the provisions of the Convention
and instances where the court has found that the Convention does not limit their carriers’ liability
British Airways V. Atoyebi 2
The Claimant was a first-class passenger on the British Airways flight from London Heathrow Airport on
Sunday 7th May 2000, arriving in Lagos in the early hours of Monday 8th May 2000. At the boarding
gate in London, on 7th May 2000, the Claimant/Respondent was informed by a staff member of British
Airways that one of the pieces of hand baggage he intended to take onto the flight was too bulky and
above the weight allowed for hand luggage. He relinquished the bag to the British Airways’ staff to be
checked into the aircraft’s hold. It was duly tagged, and the Claimant/respondent was given the
appropriate baggage tag. Upon his arrival in Lagos on 8th May, his bag did not arrive with the flight. He
returned to the airport twice a day between 8th and 10th May, but his bag did not arrive, even though
he had been informed that the bag had been traced at the airport in London and would be sent to
Lagos without delay. Mr. Atoyebi also sent two of his assistants to London and they refused to give it to
them. The airlines stated that they will send it to Lagos vide the next flight. He traveled back to London
via a business class ticket to collect it personally on 10th May 2000 and found his bag intact.
The Supreme Court was faced with determining whether the appellant/respondent, British airways was
entitled to limit its liability to the amount provided for in Article 22 (2). The Supreme Court held that
British Airways was unable to limit its liability.
The Supreme Court, per KEKERE-EKUN, J.S.C noted that:
“I am of the view that the averments in the paragraphs reproduced above clearly disclose an allegation of wilful misconduct on the part of the appellant…I agree with the findings of the two lower courts that the acts of the appellant in this case were reckless and deliberate. It not only failed to deliver the respondent’s checked baggage upon his arrival in Lagos, after everal fruitless trips by him to the airport in Lagos over a period of three days on the appellant’s promise that the baggage would arrive, it deliberately refused to deliver the said baggage to his duly authorised agents in London when it was located at their office at Heathrow Airport, and continued to withhold it until the respondent had to travel back to the U.K. to retrieve it at great personal expense. It was clear from the evidence led at the trial that the appellant had no intention of delivering the respondent’s baggage to him in Lagos, having abandoned it at its Lost Baggage store in London. It was on this basis that both courts considered the respondent’s claim for damages. I agree with both courts that in view of the appellant’s acts of wilful misconduct, it was not entitled to restrict or limit its liability to the amount provided for in
Article 22 (2) of the C.A.O.”
It appears from the above decision that the courts based their reasoning that British airways were guilty
of wilful misconduct on the premise that the Claimant/Respondent’s bag did not arrive when he landed
in Nigeria. Even after the appellant complained and he was informed that the bag had been traced at
the airport in London and would be sent to Lagos without delay and further, the air carrier did not hand
the bags over to the assistants despite his written authorization. To critically analyze the decision of the
court, it is essential to look at how other courts and jurisdictions have defined wilful misconduct in
aviation cases.
The term “willful misconduct” is not defined in the Warsaw Convention 1929. However, it would seem to
require a degree of intention or subjective recklessness 3 . The phrase Willful misconduct” has been used
in other international conventions (for example, in Art. 29 C.M.R.), and has been interpreted as
requiring either intention or subjective recklessness. In other words, the carrier must know of the risk
and act or fails to act regardless of the consequences 4 . The implication is that when a carrier is found
guilty of “willful misconduct,” under the Warsaw Convention 1929, such carrier loses the benefit of the
monetary cap limiting his liability. The carrier will, however, not be liable beyond any actual loss proven
by the Claimant
In the Horabin v. British Overseas Airways Corporation 5 , which was the first case wherein a British court had the opportunity of interpreting Article 25 of the Warsaw Convention, the court stated that:
“In order to establish wilful misconduct the plaintiff must satisfy you that the person who did the act knew at the time that he was doing something wrong and yet did it notwithstanding or, alternatively, that he did it quite recklessly, not caring whether he was doing the right thing or the wrong thing, quite regardless of the effects of what he was doing … To be guilty of wilful misconduct the person concerned must appreciate that he is acting wrongfully or he is wrongfully omitting to act, and yet persists in so acting or omitting to act regardless of the consequences, or acts or omits to act with reckless indifference as to what the result may be”.
In the American decision of Ulen v. American Airlines 7 , the Court of Appeal judge said:
“. . . if the carrier or its employees or agents wilfully performed any act with the knowledge that the performance of that act was likely to result in injury to a passenger, or performed that act with reckless and wanton disregard of its probable consequences, then that would constitute wilful misconduct…”
Looking at the above description of what wilful misconduct means, it is important to note that the air
carrier’s action must be deliberate or reckless. The author believes that British airways’ action of
delaying the delivery of the baggage of Mr. Atoyebi was a negligent act and certainly occasioned loss to
Mr. Atoyebi. The loss occasioned is recognized by the law hence the reason for the provisions of Article
22(2) of the Warsaw Convention (which was the subsisting law governing rights and liabilities of
carriage by air at that time).
In the author’s opinion, the airline’s refusal to give Mr. Atoyebi’s representatives does not amount to
wilful misconduct. The airline is only bound to deliver the bags to Mr. Atoyebi, who checked in the bag.
An authorization letter that was not earlier communicated to the air carrier before the carriage contract
conclusion cannot be the basis of adjudging the air carrier guilty of wilful misconduct.
In the American case of Ritts v. American Overseas Airlines 8, the court described willful misconduct as
below:
“Wilful misconduct is something entirely different from negligence and far beyond it, whether the negligence be culpable or gross; it involves either a deliberate intent to commit injury or intentional misconduct which is so reckless and wanton as to imply a willingness to commit injury or a complete disregard for the natural consequences of the act”.
The airline’s action does not in any way justify that the airline intended to commit injury to Mr. Atoyebi.
The failure to give the representatives might just have been a case of the air carrier been careful not to
give the luggage of Mr. Atoyebi to another person. As Clark puts it in his work, Contract of Carriage by
air, 9 for willful misconduct to have been said to occur, the following must have happened:
- Liability affected – This means that the claim is a claim which would have ordinarily triggered
limitation of liability - Intent to cause damage means the motive of the person who causes the damage 10 .
- Recklessness – Recklessness has both a subjective factor (which involves the person’s
awareness that there is a risk of severe and preventable risk) and an objective factor (the behavior is adjudged objectively as negligent) 11 . Recklessness may be said to be “negligence with an attitude”. 12 - Knowledge – The air carrier or its agent must be aware that the (mis) conduct was risky and wrong at the time of the omission.
- Probable results – it is important that the result should be probable and not just “plainly foreseeable.’ 13
- The result- there must be a connection between the loss and action said to be misconduct. As Clark puts it, the (mis) conduct must be the “but for” cause of the loss, damage, or delay 14 .
To determine if there was misconduct, the court ought to have considered the above factors. The
author opines that the evidence before the court does not show that the appellant intentionally forgot
his bag in London. The claim before the court is a delay in bringing the hand luggage to Nigeria, which
is an aviation claim. No evidence suggests that British airways or its agent knew that delaying the bag
or forgetting the bag in London was risky or wrong. There was also no evidence of probable result and
most convincingly, there was no proximate misconduct that led to forgetting the bag in London. The
appellant’s argument that British airways withheld the luggage after the appellant sent his assistant had
no connection to the delay and should not be a reason to break the limits of liability under the
Convention and in the author’s opinion, insufficient to constitute willful misconduct. Accordingly, the
decision ought to have been given within limits provided by Article 22 of the Warsaw Convention.
It is pertinent to state that under the Montreal convention, even in the event of misconduct, financial
limitations are unbreakable in respect of cargo. However, the limits are breakable in the case of
passenger injury and baggage claims.
Harka Air Services(Nig.) Limited .V. Emeka Keazor Esq. 15
The respondent in the cases boarded Harka Air Services Limited on its flight No.TU134 from Kaduna to
Lagos. There was bad weather at the point of embarkation as a result of which all other commercial
Airlines canceled their flight and none was operating two hours before the defendant’s flight took off.
The flight to Lagos was turbulent. The descent in Lagos was irregular, as the aircraft finally crash-
landed. This was followed by a smoke and fire outbreak in the cabin which caused panic and confusion as passengers scampered for safety. The respondent had a traumatic experience, coupled with
sustaining injuries and body pain. He lost his hand luggage and personal effects. The serious nature of
the injuries required medical attention. He suffered losses professionally and financially as the injuries
curtailed his day-to-day activities. The respondent was convinced that the crash was due to the
negligence, careless and recklessness of the appellant, its servants, agents, and employees in
maintaining, controlling, and operating the said aircraft on a fateful day. He filed an action at the
Federal High Court, Lagos. In the judgment, the learned trial Judge found in favour of the plaintiff and
awarded N1,257,840.00 (one million, two hundred and fifty-seven thousand, eight hundred and forty
Naira) as special and general damages as well as costs of the action. Being aggrieved by the trial
court’s decision, the defendant/appellant appealed to the Court of Appeal, Lagos. In the judgment
delivered on the 17th of March, 2005, the Court of Appeal allowed the appeal in part having found that
there was sufficient evidence of willful misconduct on the part of the appellant, it found that the trial
court was in error to have awarded damages in naira when it was specifically pleaded in U.S. Dollars.
The lower court awarded US$11,000 as appropriate compensation for general damages; the claim for
special damages failed and was set aside. The Supreme Court in the decision upheld the decision of
the Court of Appeal that there was wilful misconduct and also upheld the damages awarded in the sum
of US$11,000.
The facts of this case is similar to the American case of Ulen v. American Airlines where a passenger
purchased a ticket from Washington, D.C. to Mexico -City, Mexico. The plane crashed a few hours after
take-off. The plaintiff was seriously injured in the accident. At the time of this flight, there was in force a
Civil Air Regulation promulgated by the Civil Aeronautics Board which read:
“No scheduled air carrier shall be flown at an altitude of less than 1,000 feet above the highest obstacle located with a horizontal distance of 5 miles from the center of the course intended to be flown . . .”
(2019) LPELR-46553(S.C.)
Interrogatories answered by the air carrier showed that the plane crashed at an altitude of 3,910 feet
and was within 2 miles from the planned course flown by aircraft. The defendant tried to limit its liability but the trial court and Court of Appeal ruled that the there defendant was liable for wilful misconduct and, as such, cannot rely on the limits provided under the Warsaw Convention
The author is of the view that the case of Harka Air Services(Nig.) Limited .V. Emeka Keazor has all the
elements of misconduct in it and accordingly, the court was right to have broken the limit stipulated in the Warsaw Convention. More particularly, considering that all other commercial Airlines canceled their
flight and none was operating two hours before the defendant’s flight took off showed he had full
knowledge of the implications of his actions. It is, therefore, safe to conclude that the case certainly fell
under Article 25 of the Warsaw Convention and as such liability of the airline should not be limited
which the court rightly refused to do.
Miss Promise Mekwunye V. Emirates Airlines 17
The appellant bought the respondent’s airline return ticket for USD 2,067 to enable her to 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 U.S.A., came to the Dallas airport on the said 17th
December 2007 to commence her travel to Nigeria. She presented the flight ticket for issuance of a
boarding pass but was denied boarding, and no reason. Even though her ticket was three times
confirmed with the clear inscription “17 Dec OK”. She was merely told that the ticket had been
canceled. 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 also had to buy another electronic ticket from
American Airlines on 18th December 2007 for the sum of $3,200.00 to enable her to travel on 19th
December 2007 through a longer route: Dallas – Forthworth – London Gatwick – Dubai – Lagos and
back. She sued the respondent for damages.
The court rightly held that the cancellation meant that the respondent repudiated its contract with the
appellant by the breach of the contract’s fundamental term and accordingly, it does not entitle it to plead
the Montreal Convention, particularly Articles 17 – 22 thereof. The reasoning behind this appears to be
in line with the global consensus that flight cancellations that result in passengers’ inability to get to their
destinations are not considered delays and accordingly do not fall within the periscope of Article 19 of
the Montreal Convention. These sorts of claims are considered to claim non-performance of a contract
(i.e., breach of contract) and governed by domestic contract laws 18 .
The position of resulting to domestic contract laws may be different now if a Nigerian Court is faced with
the same subject considering that Part 19 of the Nigeria Civil Aviation Consumer Protection Regulations
(2015), which came into effect after the institution of the matter, clearly stipulates in 19.4 and 19.5 of the regulations that a person who is denied boarding should be compensated under regulations 19.8 and 19.9; and also be assisted in accordance with Sections 19.10; 19.11and 19.12. The compensation available under the regulation is a reimbursement within fourteen days for international flights of the full cost of the unutilized ticket at the price at which it was bought, for the part or parts of the journey not made. The regulation also allows for rerouting as compensation available to a victim.
However, it is noteworthy that the compensation under this regulation does not seem adequate and may lead to parties who have suffered a delayed flight, to seek recourse to court with a view to claiming a breach of contract.
Conclusion
Nigerian courts are happy to give effect to the limits set by the carriage by air conventions. However, it
appears that the standard of proving willful misconduct is too light and easy. Misconduct is a step
higher than gross negligence and accordingly, the standard of proving willful misconduct is expected to
be high. Whilst it is agreed that the elements that form wilful misconduct is rarely admitted, the court
must when considering circumstantial evidence distinguish between most courts distinguish between
negligence from mere thoughtlessness, inadvertence, errors in judgment, and inattention which can all
be said to be factors proving negligent conduct compared to wilful misconduct.
Furthermore, Nigerian courts have shown from case laws like Miss Promise Mekwunye V. Emirates
Airlines and Cameroon Airlines V. Mr. Mike E. Otutuizu 19 that matters not expressly covered by the air
conventions will be treated as a breach of contract and will not be subject to the limits provided by the
conventions.
DAMILOLA OSINUGA, MICS, (PHD, IN VIEW)