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Miss Promise Mekwunye v. Emirates Airlines (2018) – SC

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➥ CASE SUMMARY OF:
Miss Promise Mekwunye v. Emirates Airlines (2018) – SC

by PipAr Chima

➥ COURT:
Supreme Court – SC.488/2014

➥ JUDGEMENT DELIVERED ON:
Friday, the 1st day of February, 2019

➥ AREA(S) OF LAW
Damages;
Leave to appeal;
Agency;
Aviation liability.

➥ NOTABLE DICTA
⦿ APPEAL AGAINST A NONEXISTENT DECISION
I need only add that an appeal against a phantom or non-existent decision is an abuse of the Court’s process. – Ejembi Eko, J.S.C.

⦿ PARTY LIABLE OF A FUNDAMENTAL TERM WILL NOT BE GRANTED RELIEF IN EXCLUSION CLAUSES
It is settled from a number of decisions that a party in breach of a fundamental term of his contract with a third party will not be allowed to benefit from or resort to exclusion clauses: PINNOCK 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 principle is that a party who is guilty of breach of a fundamental term of contract could/should not benefit from his own wrong doing by resorting to exclusionary clauses in order to limit his liability. This is moreso, 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. – Ejembi Eko, J.S.C.

⦿ GENERAL DAMAGES ARE COMPENSATION PRESUMED BY THE LAW
General damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need not be alleged or proved. A long line of cases of this Court have followed this line but I shall refer to a few. – Peter-Odili, JSC.

⦿ COMPENSATORY DAMAGES IS SAME AS GENERAL DAMAGES
Indeed, Compensatory Damages is the same as General Damages which is damages recovered in payment for actual injury or economic loss, which does not include punitive damages. A sum of money awarded in a civil action by a Court to indemnify a person for the particular loss, detriment, or injury suffered as a result of the unlawful conduct of another. Compensatory damages provide a plaintiff with the monetary amount necessary to replace what was lost, and nothing more. – Peter-Odili, JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Ejembi Eko, J.S.C.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Dr. Charles Mekwunye.

⦿ FOR THE RESPONDENT
Osayoba Giwa-Osagie, Esq.

➥ CASE HISTORY
Seven (7) months before her travel date the Appellant, through Mr. Clement Dolor an officer/employee of the Respondent at the Respondent’s office in Victoria Island, Lagos, bought the Respondent’s airline return ticket (electronic) for $2,067 USD to enable her 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.

Available:  Imoro Kubor & Anor v. Hon. Seriake Henry Dickson & Ors. (2012) - SC

The Appellant, a student of the North Texas University, Denton, Texas USA, came to the Dallas airport on the said 17th December, 2007 to commence her travel to Nigeria whereat she presented the flight ticket for issuance of boarding pass. She was denied boarding, and no reason was given to her; notwithstanding that her ticket, Exhibit PM.2, was three times confirmed with clear inscription thereon “17 Dec OK”. She was merely told that the ticket had been cancelled. 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 had also, through her father, to buy another electronic ticket from American Airlines on 18th December, 2007 for the sum of $3,200.00 to enable her travel on 19th December, 2007 through a longer route: Dallas – Forthworth – London Gatwick – Dubai – Lagos and back. The longer route took stressful 48 hours to complete.

The Appellant sued before the Federal High Court. The trial Court ordered “the ticket refund to the (Appellant) should be in full without any deduction or charge,” and a “further grant of N2.5 million in general damages and N250,000.00 in legal costs” to the Appellant.

The Respondent appealed to the Court of Appeal which said Court overruled some parts of the Trial Court’s judgment. This is an appeal by the Plaintiff/Appellant.

➥ ISSUE(S) & RESOLUTION
[APPEAL: ALLOWED, IN PART; AWARDED COST OF N500,000 against the Respondent.]

I. Whether the Court of Appeal ought to have entertained an issue on cost without leave of Court sought by the Respondent (who appealed)?

RULING: IN APPELLANT’S FAVOUR.
A. In this case, since the 1st Respondent did not obtain leave, the ground of appeal in the cross-appeal complaining against costs ought to be struck out and the issue formulated from it becomes a non-issue. Accordingly, I agree with the Appellant that the Respondent’s complaint in ground 4 of the Grounds of Appeal at the lower Court, from which the Respondent as the appellant at the lower Court formulated its issue 4, is incompetent having been raised without leave either of the trial High Court or the lower Court.
.
.
II. Whether the Appellant is entitled to special and general damages?

RULING: IN APPELLANT’S FAVOUR.
A. I am of the firm view that the Respondents 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, as the Appellant herein, was not only put to extra expenditure of having to buy a more expensive ticket for a longer route, but also to endure the embarrassment, stress and inconvenience for two days of being stranded clearly entitles the passenger to both general damages and the ticket refund.
B. In the instant case, the Appellant, as the Plaintiff, paid for flight ticket. She was denied boarding even after confirming the flight three times (Exhibit PM.2). In consequence thereof 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 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. Award of damages for breach of contract is based on resitutio in integrum. That is: in so far as the damages are not too remote, the Plaintiff should be restored, as far as money can do it, into the position in which he would have been if the breach had not occurred.
.
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III. Whether the limitation of liability under the Montreal Convention, 1999 domesticated by Section 48 of the Civil Aviation Act, 18 2006 is applicable to the instant case?

Available:  Tega Esabunor & Anor v. Dr. Tunde Faweya & Ors (2019)

RULING: IN APPELLANT’S FAVOUR.
A. I agree with the Appellant that the Respondent’s repudiation of its contract with the Appellant by the breach of the fundamental term of the contract does not entitle it to plead the Montreal Convention (particularly Articles 17 22 thereof). On whether Articles 17 22 of the Montreal Convention avail an airline in breach of its fundamental term of contract with the passenger, this Court re-stated the principle clearly in CAMEROON AIRLINES v. OTUTUIZU (supra) thus: The Articles have nothing to do with the liability of an airline in the event of breach of a contract to transport its customer to a given location. The legislations relied upon by the Appellant have neither provided defence nor set limit to the amount of damages recoverable in the event of the Plaintiffs success in establishing that the Defendant had failed to transport him by air to an agreed destination.
.
.
IV. Whether Clement Dolor in applying, on behalf of Simba Travel & Tours, for the ticket refund to the Appellant was the Appellant’s agent?

RULING: IN RESPONDENT’S FAVOUR.
A. For the Respondent it is submitted that the existing facts clearly establish that Clement Dolor, PW.1, was the agent of the Appellant when he applied for the refund of the American Airline ticket and that the Lower Court was right in holding that he was the agent of the Appellant for the purpose of not only the refund of American Airline Ticket but also the refund of Emirate Airline Ticket. Existing facts support that inference. Clement Dolor, PW. 1, testified at page 188 of the Record that the Appellant was his client for five years. The Lower Court’s finding of fact on this is not perverse. The Appellant has not established any special circumstance that warrants my disturbing this finding of fact.

Available:  Ojo v. Gharoro (2006)

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)
Warsaw Convention;
Montreal Convention;
Aviation Act.

➥ REFERENCED (CASE)
⦿ WHAT IS A FUNDAMENTAL TERM OF A CONTRACT
Niger Insurance Company Ltd v Abed Brothers Ltd & Anor (1976) LPELR-1995 (SC), thus:- “A fundamental term of a contract is a stipulation which the parties have agreed either expressly or by necessary implication or which the general law regards as a condition which goes to the root of the contract so that any breach of that term may at once and without further reference to the fact and circumstances be regarded by the innocent party as a fundamental breach and thus is conferred on him the alternative remedies at his option”.

⦿ EXEMPTION CLAUSES ONLY APPLIES WHERE THE CONTRACT IS BEING CARRIED OUT IN ITS PROPER RESPECT
Pinnock Brothers v Lewis & Peat Ltd (1956) 2 All E. R. 866, where the Privy Council Per Denning, LJ (as he then was) stated inter alia that: “It is now settled that exempting clauses of this kind no matter how wisely they are expressed, only avail the party when he is carrying out his contract in its essential respects”.

⦿ DEFINITION OF WILLFUL MISCONDUCT
Horabin v BOAC (1952) 2 All ER 1016 at 1020 as follows: “Wilful misconduct is misconduct to which the will is a party and it is wholly different in kind from mere negligence or carelessness, however gross that negligence or carelessness may be… To be guilty of wilful misconduct, the person concerned must appreciate that he is acting wrongfully, or 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; all the problems… must be considered in the light of that definition.”

⦿ WHAT IS AN AGENCY RELATIONSHIP
Okwejiminor v Gbakeji (2008) 5 NWLR (Pt.1079) 172 Mohammed JSC defined the concept of agency thus:- “Agency is the relationship which exists or arises where one person called the agent, has the authority or capacity to create legal relations by acting on behalf of another person called the principal, whereby the latter undertakes to be answerable for the lawful acts of the former provided it was done within the scope of the former’s authority, or ratified by the latter”.

⦿ APPARENT OR OSTENSIBLE AUTHORITY IN AGENCY
Jallco Ltd v Owoniboys Technical Services (1995) 4 NWLR (Pt.391) 534, this honourable Court held that:- “Under the doctrine of apparent or ostensible authority where a person by words or conduct represents to a third party that another has authority to act on his behalf, he may be bound by the acts of that other as if he had in fact authorized litem”.

➥ REFERENCED (OTHERS)

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