The rise in the use of aircrafts with respect to trans-border trade and transportation has led to easy, convenient and fast movement of goods and people from place to place. With the use of Click Wrap Agreements, at the click of a button, anyone can make travel arrangements and enter into contracts for carriage of good(s) or person(s). In Nigeria, this development has however created an issue as to which court is competent to entertain disputes arising from a breach of contract or a tortious claim arising from such contract of carriage. Litigants are now uncertain as to which court to approach and when for redress against any breach of carriage contracts or tortious claims arising from such contracts.
It is trite that jurisdiction is a fundamental concept which connotes the limits within which a court or tribunal can exercise its adjudicatory powers. Aside from the party involved, the other key factor in determining a court’s jurisdiction is the subject matter of the claim. In relation to the subject matter of aviation, most litigants, dash to the Federal High Court to seek redress. This conclusion is largely predicated on the provisions of section 251(k) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (“the Constitution”), which vests jurisdiction in relation to aviation matters on the Federal High Court. The section provides thus:
“251(1) 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:
(k) Aviation and safety of aircraft”.
Whilst relying on the above section of the Constitution and a plethora of cases, especially the Supreme Court cases of Cameroon Airlines Ltd v. Otutuizu and British Airways v. Atoyebi, it seems easy to conclude that the Federal High Court is the appropriate forum to approach for disputes relating to aviation.
However the jurisdiction of the Federal High Court does not cover every situation where the subject matter relates to aviation, particularly carriage by air. For the jurisdiction of the Federal High Court to be invoked, there must have been an actual carriage of such goods and or passengers. The decision of the Court of Appeal in K.L.M. Royal Dutch Airlines v. Taher will shed more light in this regard.
The respondent was to be airlifted by the airline for business purposes from Lagos to Canada and the USA on 7th February 2007. If he failed to meet his appointments, the respondent stood to lose $140,034.51 in non-refundable deposits on the machines he had purchased. It was therefore imperative for him to leave the country on 7th February 2007. Upon arrival at the airport, a staff of the airline verbally attacked him after he had been fully screened, checked-in and given a luggage tag as well as his boarding pass. Following the altercations that ensued, the airline refused to airlift the respondent that day. The respondent instituted an action at the Federal High Court, seeking various declaratory reliefs and damages. The airline challenged the jurisdiction of the Federal High Court to entertain the matter. The court overruled objection and assumed jurisdiction pursuant to section 251(1)(k) of the Constitution. The trial court proceeded with the hearing of the matter and entered judgment in favour of the respondent. The airline appealed the court’s decision, particularly with respect to the court’s jurisdiction.
The Court of Appeal, in agreeing with the airline, held thus:
“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 Court went further to define when carriage actually occurs. It states thus: “…for there to be carriage of passenger by air, the passenger must have entered or boarded the aircraft and be in the process of being carried or conveyed”. The Court also relied on the 6th Session of the Warsaw Conference, which established that “The period of carriage commences from the time of embarkation of persons on board the aircraft”. It is important to note that in a large number of previous decisions of Nigerian courts on the issue of aviation (including Cameroon Airlines case and British Airways case), the carriage of the goods or persons had actually occurred before the dispute ensued.
The decision of the Court of Appeal in the K.L.M Royal Dutch Airlines case is laudable as it represents the correct position of the law that the High Court of a state will have jurisdiction over disputes regarding simple contracts where there is no actual carriage of persons and their goods by air.
Emmanuel Ohiri practices law as an associate at TNP. Aversion of this article (with some language adjustments) can also be found on his LinkedIn page here: https://www.linkedin.com/pulse/carriage-air-proper-forum-sue-emmanuel-ohiri?trk=prof-post