INTRODUCTION
Generally, parties are bound by the contract which they have entered into and are required to fulfil their obligations to avoid liability that may arise from the non-performance or the breach of such contract.
Usually, there exists a carriage contract between airlines and passengers and the status of passengers are usually defined by the existence of such agreement. When a carrier holds himself out as a common carrier and makes his services available for the carriage of passengers to their various destinations, it constitutes an offer to all intending passengers. A person who enters the premises or accommodations of the common carrier for the purpose of accepting the carrier's offer becomes a passenger. Two deliberate acts constitute an acceptance of the carrier’s offer by the passenger; the act culminating into acceptance and the intention to accept the carrier’s offer.
The carrier owes the passenger a high degree of diligence and care. In recent times, airlines are known for relying on plethora of exclusionary terms to escape liabilities. Courts have been faced with the duty of determining the justifiability and legality of exclusionary clauses over the years. This work focuses on the liability of a carrier as it relates to cancellation of flight using the Supreme Court case of MEKWUNYE V. EMIRATES AIRLINE [2019] 9 NWLR (PT. 1677) 191 as a case study. In the matter, the Supreme Court determined the duties and liability of Airlines and the extent to which they can be protected by exclusionary clauses upon cancellation of flights.
BACKGROUND FACTS
Miss Promise Mekwunye, the Appellant, purchased a ticket via an agent from the Emirates Airlines, the Respondent, to travel from Texas in the USA to Lagos, Nigeria. Prior to the scheduled flight date, the Respondent had sent a ticket to the Appellant. The Appellant contacted the Respondent on three different occasions to confirm the validity of the ticket and got affirmative responses. On the flight date, however, the Appellant was prevented from boarding the airplane on the ground that the ticket had been cancelled.
The Respondent failed and neglected to provide an alternative means for the appellant and neither was the Appellant provided with any accommodation and feeding due to the airline's refusal to fly her to her destination. Upon the disappointment encountered by the Appellant with the Respondent’s company, the Appellant had no choice but to buy another flight ticket from a different airline to enable her travel to her desired destination.
Aggrieved by the Respondent’s actions, the Appellant's, through her Attorney wrote to the Respondent wherein she demanded a refund of money paid for the two tickets. The Appellant, at all material times, communicated the Respondent through their desk officer/employee. The Appellant handed to the Respondent, through the said desk officer/employee, the tickets for a refund.
The Respondent paid the sum of $1,777.00 purporting to be the refund of their (Respondent's) own ticket. It withheld the ticket of the American Airline (the other airline) and made no effort to refund the money paid to purchase that ticket. The Appellant's attorney rejected the sum of $1,777 alleged to be the refund of the Respondent's ticket. The Appellant then instituted the matter in the High Court.
THE FEDERAL HIGH COURT’S DECISION
At the suit of the Appellant (Plaintiff), the Federal High Court, in its judgment found that the Respondent's (Defendant) "refusal to carry the (Appellant) from Dallas on the 17th December 2007 amounts to a breach of contract of carriage with (her)," and that "No limitation to liability applies here". Consequently, the trial Court ordered "the ticket refund to the (Appellant) should be in full without any deduction or charge," and a "further grant of N2,500,000 million (Two Million and Five Hundred Thousand Naira) only in general damages and N250,000 (Two Hundred and Fifty thousand Naira Only) in legal costs" to the Appellant.
THE COURT OF APPEAL’S DECISION
The Respondent lodged its appeal as of right to the Court of Appeal complaining that "the learned trial Judge erred in law when he awarded N250,000.00 in legal fees when the Plaintiff claimed N1,000,000.00 but led no evidence". The Respondent (in the Supreme Court), as the appellant at the Court of Appeal, raised issues for the determination of the appeal. The Court of appeal held that The learned trial Judge consequently erred in granting the sum of N250,000.00 legal costs. Having arrived at the conclusion that the award is for legal costs and not costs simpliciter, and that the leave of Court was unnecessary. In essence, the Court of Appeal overruled the trial court on the award of general damages awarded, holding that ordering the Respondent to pay general damages in addition to the refund for tickets amounted to double compensation contrary to the Convention for Unification of Certain Rules Relating to International Carriage by Air, otherwise known as the Montreal Convention. The Appellant, dissatisfied with the Court of Appeal’s decision, appealed the Court of Appeal's decision to the Supreme Court.
THE SUPREME COURT’S DECISION
The Supreme Court allowed the appeal on virtually all the issues raised by the Appellant (passenger). The decision of the Court of Appeal was substantially set aside by the Supreme Court. Therefore, the judgment of the trial Court was restored. The costs of N500,000 (Five hundred thousand Naira) only was awarded by the Supreme Court in favour of the Appellant.
THE RATIONAL BEHIND THE SUPREME COURT’S DECISION
Emirate Airline, the Respondent, at the Supreme Court had relied on the provisions of the Montreal Convention. It contended that the award of N2,500,000 million (Two Million and Five Hundred Thousand Naira) after ordering the refund of tickets amounts to double compensation and qualifies as non-compensatory damages under the Montreal Convention.
The court did not mince words in holding that in its view, the appellant had conceded that under the Montreal Convention "compensatory damages may include special and general damages". The Responded had also argued that "in aviation claims, as in the law governing the award of damages awardable in breach of contract cases, there is no distinction between special and general damage" and that "any claim for damages must be subsumed in and is circumscribed by the provisions of the statute as provided by Articles 22 and 29 of the Montreal Convention.
The court aligned with the Appellant that compensatory damages and general damages are the same. They are damages recoverable as payment for actual injury or economic loss. They do not include punitive or exemplary damages.
The court after distinguishing the case under reference from the case of British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253, held that the Respondent is in flagrant breach of contract whereby it unreasonably denied boarding to a confirmed passenger for no good cause, previous notice and without explanation whereby the passenger was not only put to extra expenditure of having to buy a more expensive ticket for a longer route but also to endure embarrassment, stress and inconvenience for two days of being stranded clearly entitles the passenger to both general damages and ticket refund.
The Supreme Court also addressed the issue of whether the limitation under the Montreal Convention is applicable even though the Appellant had confirmed her ticket three separate occasions prior to the flight date. The Supreme Court held that the Respondents acts amount to a violation of the fundamental term of the contract and by implication had repudiated the contract. The court sought refuge in the cases of KAYDEE VENTURES LTD v. HON. MINISTER FCT (2010) 7 NWLR (Pt. 1192) 171; (2010) LPELR 1681 (SC) cited by the Appellant to the effect that where a breach of contract is of a fundamental nature, such as the one on appeal, the Plaintiff, who suffered as a result, deserves to go home fully compensated. Though in the KAYDEE VENTURES case there was no award of special damages, and no issue of double compensation arose therein; however, there was in that case like the matter under this discourse, a case of flagrant or reckless breach of contract.
The Supreme Court further holds that it would be unfair and unjust for the Respondent, as the carrier, to merely refund the flight ticket without compensatory or general damages for the loss of time, stress, embarrassment and inconvenience she suffered in consequence of the breach of contract by the Respondent. The court did not express doubt as to the fact that the denial of boarding was provided for and in contemplation of the parties by virtue of the exception clause in Article 9.3.1 of the Emirates Condition of Carriage, 2006 that provides:
“If we cannot carry you in your ticketed class of service on a flight for which you have a confirmed reservation and have met all applicable check-in and boarding deadlines, we will carry you on one of our latter flights in your ticketed class of service, or if you choose, we will carry you on another class of service and will refund you the difference between the applicable fare, taxes fees, charges and surcharges paid for your ticketed class of service alternatively you may choose to receive an involuntary refund in accordance with Article 10.2.”
Further to the above peculiar facts of the case of Mekwunye and Emirate Airlines, the court posited that exclusion clause cannot and does not avail the Respondent for denying boarding to the Appellant for no just cause and no explanation whatsoever. The Respondent’s act of repudiation and breach of the fundamental term in the carriage contract does not entitle him to plead the Montreal convention.
It is an elementary principle under the law of contract that a party who is in breach of a fundamental term in a contract cannot rely on exclusion clauses.
See the cases of IPINNOCK BROTHERS v. LEWIS & PEAT LTD (1956) 2 ALL E.R. 866; ADEL BOSHALLI v. ALLIED COMMERCIAL EXPORTERS LTD (1961) ALL NLR 917 at 922; OWNERS OF NV GONGOLA HOPE v. S.C. (NIG). LTD.
The rationale for the above principle was reiterated by the Supreme Court in the case under reference. The court held thus:
“…that a party who is guilty of breach of a fundamental term of contract could/should not benefit from his wrongdoing by resorting to exclusionary clauses to limit his liability. This is more so, when a contract of carriage by air is brazenly breached and no explanation is offered, as in the instant case. In which case, there is a total failure of consideration and the central purpose or essence of the contract has wholly disappeared.”
From the foregoing, the Court has established that a party who is guilty of a fundamental breach cannot resort to exclusionary clauses to escape liability. At this juncture, it is important to state that consideration is pivotal to the existence and validity of a contract. In a carriage contract, the Airline furnishes its obligation by ensuring the passengers gets to its destination safely, and at the appointed time. Cancelling tickets or flights indeed amounts to a fundamental breach.
CONCLUSION
To determine liability in a carriage contract, it is crucial to identify the presence of the elements of a valid contract. There are instances where an Airline may offer to carry a passenger for free. Would it be just to accord the same treatment to a passenger who furnishes consideration and a passenger who enjoys free flight? The airline could also be private or common. Persons on Airlines occupy differing statuses, ranging from a paying passenger, a free passenger, licensee; trespasser or an employee of the carrier as the case may be. The duties of each person or party are determined by the position he/she occupies in the contract.
As shown in this piece, a party who has suffered as a result of another’s default or a breach in a contract must be adequately compensated and the erring party cannot be exonerated under the guise of limiting or exclusionary clauses.
By: Abdulrazak Ahmed
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