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S-Court sides with Nigerians in interpretation of Montreal Convention

By Henry Ojelu

In the aviation sector, the Montreal Convention 1999, MC99, is the internationally accepted rules guiding airlines and passengers.  The convention establishes airline’s liability in the case of death or injury to passengers, as well as in cases of delay, damage or loss of baggage and cargo.

Supreme Court

One of the provisions in the convention is the limit of claim that a passenger can claim from any airline in the event of breach of contract. But the Supreme Court has set a new precedent with regards to the application of that clause in the country.

Ruling last month in an appeal brought by one Miss Promise Mekwunye against Emirates Airline, the apex court held that denial of boarding is a repudiation of contract and a breach of the fundamental term of a contract which does not entitle an airline to rely on Montreal Convention which sets limit of claims in an action between the airline and its passenger.

Miss Mekwunye who was then a student of North Texas University, Denton, Texas, USA, had in 2008 dragged the airline to court for refusal of boarding of her two-way flight ticket from Dallas to Nigeria and back for no reason and for further refusing to fully refund the cost of the ticket of American Airline she bought to come back to Nigeria.

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In the suit before the Federal High Court, Mekwunye claimed that she had bought the airline return ticket for $2,067 in May 2007 but upon presentation of the ticket for issuance of boarding pass in December 2007, she was denied boarding.

She further claimed that the airline offered no reason for its action leaving her stranded for days at the airport until she was able to secure a more expensive flight ticket on a longer route to Lagos.

She prayed the court to order the airline to refund the full cost of her American airline ticket and to pay for damages she suffered as a result of the ordeal.

In its judgment delivered on November 15, 2010, the Federal High Court held that the refusal of Emirates Airline to carry Mekwunye amounted to a breach of contract of carriage.  Consequently, the court ordered full refund of ticket without any deduction or charge, and further granted N2.5 million in general damages and N250,000 in legal costs against the airline.

Not pleased with the court’s decision, Emirates Airline appealed the judgment  before the Court of Appeal Lagos.

The airline contended that the trial Judge erred in law when he awarded N250,000.00 in legal fees when the plaintiff claimed 1,000,000.00 but led no evidence.

The airline contended that the award of general damages was contrary to the Montreal Convention which not only limits the damages recoverable but placed obligation to prove wilful misconduct/gross negligence against the airline before the airline can be liable for damages.

The airline also contended that the award of additional N2.5m damages is double compensation since the trial court had awarded the plaintiff the refund of the amount used in purchasing her ticket.

In its judgment of April 11, 2014, the Court of Appeal upheld the airline’s appeal and upturned the award of N250,000 and N2.5million earlier awarded to Mekwunye by the lower court.

Supreme Court decision
But in a lead judgement delivered by Justice Ejembi Eko in an appeal filed by Mekwunye, the Apex Court overruled the decision of the Court of Appeal and upheld the earlier judgment of Federal High Court.

The apex court held that the trial court was right in ordering Emirates Airline to pay in the circumstances N2.5m as general damages in addition to ticket refund as the airline cannot rely on the Montreal Convention for limitation of liability when it was guilty of fundamental breach of the contract as argued by the appellant’s lawyer and father, Dr.  Charles Mekwunye.

The Supreme Court further held amongst other things that the Court of Appeal was wrong to have heard and upturned the decision of the lower court when Emirates Airline never obtained leave of court to file the appeal as to costs.

The judgement reads in part: “In the instant case, the appellant paid for flight ticket. She was denied boarding even after confirming the flight three times. In consequence therefore, she was stranded for two days without explanation, apologies and alternative arrangement and was constrained to pay for a longer route on a more expensive ticket.

“It would therefore in my view be unfair and unjust for the respondent as the carrier to merely refund the flight ticket without compensation or general damage, for the lost of time, stress, embarrassment and inconvenience she suffer in consequence of breach of contract by the respondent.”

The apex court also held that the airline’s denial of board was a repudiation of its contract with Mekwunye and a breach of the fundamental term of the contract which does not entitle it to rely on the Montreal Convention which sets limit  of claims in an action between an airline and it passenger.

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