Wrongful cancellation of a passenger’s flight renders an airline liable in damages

MISS PROMISE MEKWUNYE v. EMIRATES AIRLINES

SUPREME COURT OF NIGERIA

(PETER-ODILI; AKA’AHS; KEKERE-EKUN; SANUSI; EKO, JJ.SC)

FACTS

Miss Promise Mekwunye (the Appellant), a student of North Texas University, Denton, Texas, USA, purchased a return electronic ticket for $2,067 USD from Emirates Airlines (the Respondent) to travel from Dallas – Houston – Dubai – Lagos, and back. The ticket was bought seven months before the travel date through Mr. Clement Dolor, an officer/employee of the respondent at its Victoria Island, Lagos office. The Appellant confirmed the ticket more than three times with Mr. Dolor before her travel date. On that day, she arrived at Dallas Airport, USA, to commence her journey to Nigeria. She presented her ticket for the issuance of a boarding pass but was denied boarding without any explanation, despite the ticket clearly being confirmed three times with “17 Dec OK” inscribed on it. She was only informed that the ticket had been canceled, although she had not been notified of this prior to her arrival. The Respondent did not provide any alternative travel arrangements, causing her significant embarrassment and forcing her to stay overnight without accommodation. Consequently, she had to purchase another electronic ticket from American Airlines for $3,200 USD through her father, enabling her to travel via a longer route: Dallas – Fort Worth – London Gatwick – Dubai – Lagos. This longer journey took 48 hours to complete.

On 4th January 2008, the Appellant’s attorney wrote to the Respondent demanding a refund for both tickets. At all relevant times, the Appellant communicated with the Respondent through Mr. Dolor and handed the tickets to him. The Appellant became aware that Mr. Dolor had left the Respondent’s employment and was operating his own travel agency, Simba Travel & Tours. The Respondent, acting through Simba Travel & Tours, refunded the sum of $1,777 USD for the Respondent’s own ticket but withheld the American Airlines ticket and did not provide any refund for it. The Appellant’s attorney rejected the partial refund and directed Mr. Dolor to return the money to the respondent, but the respondent refused to collect it.

The Appellant then sued the Respondent at the Federal High Court. The trial court held that the Respondent’s refusal to carry the Appellant from Dallas to Lagos on 17th December 2007 constituted a breach of the contract of carriage by air, and that no limitation of liability applied to her claim. Accordingly, the court ordered a full refund of the ticket, awarded N2.5 million as general damages, and N250,000 as legal costs to the Appellant. The Respondent appealed to the Court of Appeal, which set aside the award of N2.5 million in general damages and N250,000 in legal costs.

Dissatisfied with the Court of Appeal’s judgment, the appellant further appealed to the Supreme Court. One of the issues for determination was: Whether the Court of Appeal was right to have held that the limitations as to damages claimable under a contract for the carriage of passengers, baggage and cargo provided in the Montreal Convention was applicable to this case.”

ARGUMENTS

Learned counsel for the Appellant contended that the Montreal Convention does not extinguish the right of a non-breaching party to claim damages, nor does it completely prohibit the award of general damages against an airline for grievous and reckless breaches of a contract of carriage by air. It was counsel argument that the provision merely bars the award of aggravated, punitive, or other non-compensatory damages. He argued that the lower court erred in holding that the award of N2.5 million as general damages for breach of contract was contrary to the Montreal Convention, which merely places limits on certain claims and that the lower court had no basis to conclude that the general damages awarded were in violation of the Montreal Convention’s prohibition on non-compensatory or punitive damages.

Learned counsel further argued that the denial of boarding to the Appellant without just cause constituted both wilful misconduct and a breach of fundamental contractual obligations, amounting to a failure of performance. He submitted that the principle against double compensation does not completely extinguish the right of a non-breaching party to recover both general and special damages in appropriate cases. Where the circumstances show, or it is apparent from the evidence, that special damages alone would not adequately compensate the injured party for the full extent of the loss, the court should award both general and special damages. In this case, the Appellant suffered financial loss, frustration, emotional distress, and anxiety, all of which were clearly demonstrated through evidence before the trial court.

In response, learned counsel for the respondent argued that the Montreal Convention does not permit the award of general damages in addition to special damages, in accordance with established principles governing the award of damages for breach of contract. Counsel submitted that the further award of N2.5 million as general damages in this aviation claim was punitive in nature and could not properly be regarded as compensatory. He contended that the Appellant was only entitled to compensation for losses that naturally flowed from the breach of contract and were within the contemplation of the parties at the time of entering into the contract.

DECISION OF THE COURT

In resolving the issue, the Supreme Court held that:

An air carrier that repudiates its contract to transport a passenger without justification commits both a wilful breach and a violation of a fundamental contractual term, and by so doing, cannot rely on the Montreal Convention to escape liability for damages and compensation. The Court explained that while the Montreal Convention generally limits the damages or compensation recoverable by passengers, this limitation does not apply where the carrier acts with intent to cause damage or acts recklessly, knowing that damage is a probable consequence.

The Supreme Court further held that the Montreal Convention does not shield air carriers in cases of unjustified denial of boarding, as such conduct constitutes wilful misconduct and gross negligence, both of which are explicitly exempted from the limitation of liability under the Convention. Accordingly, the limitation of damages or compensation under the Montreal Convention is subject to the exception that the carrier must not have acted intentionally or recklessly.

In the instant case, the Supreme Court found in favour of the Appellant and held that that the Respondent was in flagrant breach of the contract having unreasonably denied boarding to the Appellant for no good cause, previous notice and without explanation and the Appellant 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. The Court held that the trial court was right in ordering the Respondent to pay the sum of N2.5 million as general damages in addition to the ticket refund.

Issue resolved in favour of the Appellant.

Dr. Charles Mekwunye with Ekene Nwonu, Esq. for the Appellant.

Osayaba Giwa-Osagie, Esq. with Ikechukwu Odozor, Esq. for the Respondent.

This summary is fully reported at (2019) 6 CLRN in association with ALP NG & Co.

See www.clrndirect.com ; www.alp.company.

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