Michael O B O Y O V W I Dedon

The Montreal Convention, the treaty that regulates international air travel, completely preempts state law causes of action in contracts of air transportation. However, it is a common practice in Nigeria for plaintiff passengers to assert causes of action that arise under local or state law in causes of action founded upon air travel. This practice is, to some extent, encouraged by the law Courts who often times resort to applying principles of domestic/common law to allow remedies not permitted by the Convention. The article examined the evolution and present state of the law governing the preemption of passenger claims for compensation for harm arising from air travel under the Montreal Convention as applicable to Nigeria.

Article 17 of both the Warsaw Convention and the Montreal Convention combine to hold airlines absolutely liable for any accident in which a passenger suffers death or injury if the "accident" occurs on board an aircraft or while the passenger is "in the course of any of the operations of embarking or disembarking." Both conventions however do not offer a definition of "accident" in their respective treaties thereby leading to a lack of uniformity by Courts in defining it. The article focused on the adopted meaning of "accident" in both conventions by the courts globally and its consequence on airlines liability.

The emergent trend in Nigeria currently is for some powerful actors to petition the police to go after anyone that says anything they find offensive in regards to their person or business. Under Nigerian laws, as presently constituted, defamation could either be a civil tort or a crime. Therefore, a defamed person may decide to either institute a civil action in Court to seek compensatory damages (and sometimes also apply for an injunctive relief) or initiate a criminal proceeding to punish the offender under the law of criminal defamation. The paper focused on the constitutionality of the offense of "criminal defamation" (which is the legal basis for these arrests/prosecutions) and concluded that the same is a legal restriction on the right to freedom of expression in Nigeria in view of the constitutionally guaranteed right to freedom of expression.

The Supreme Court of Nigeria decision in PROMISE MEKWUNYE v EMIRATES AIRLINES was to the effect that the failure to transport a passenger to a given location is a breach of a fundamental term and disentitles the airline from pleading the limits of liability under the Montreal Convention. This decision was on the basis that a party who is guilty of a fundamental breach of contract cannot resort to exclusionary clauses to escape liability. The decision came like a tsunami which changed the dynamics of a carrier’s liability for denied boarding since the import of the judgment is to the effect that a passenger possessing a confirmed reservation on a flight must be carried in all situations irrespective of the terms and conditions of carriage attached to the use of the air ticket. This article argued that the decision is perverse as the Civil Aviation Act incorporated the Montreal Convention as the applicable statute in Nigeria in a cause of action founded on the performance and/or enforcement of contracts of carriage by air to the exclusion of common law of contract or domestic/national laws. Where the Montreal Convention has not provided a remedy, no remedy is available!

In Nigeria, there is often a difficulty faced by many lawyers in determining the proper Court with jurisdiction to entertain actions for breach of contract of carriage by air with the consequence that matters that have been litigated up to the Court of Appeal stage end up being struck out for want of jurisdiction by the Court of first instance. The controversy springs from the competing jurisdiction of the Federal High Court and the States’ High Court in regards to which of the two Courts is vested with jurisdiction to entertain such claims. In some decisions of the Court of Appeal, it was held that the jurisdiction of either of the two Courts to entertain such matters is tied to a determination of the fact whether carriage had in fact taken place. If carriage had taken place, then it is an aviation claim for which jurisdiction lies solely with the Federal High Court and if no carriage had in fact taken place then it is regarded as a simple contract for which jurisdiction lies with the States’ High Court. This dichotomy between aviation contract and a simple contract is however find no support under Nigerian law in view of the of the clear and unambiguous provision of Section 7(1) of the Federal High Court (Amendment) Act of 1991 No. 60 which vests exclusive jurisdiction on the Federal High Court over all aviation related matters.