by Chioma Angela Okeke
Ordinarily, this issue should not arise, but for the decision of the Court of Appeal in KLM DUTCH AIRLINES V TAHER (2014) 3 NWLR (PT 1393) 17; KLM ROYAL DUTCH AIRLINE V IDEHEN (2017) LPELR – 4357 (CA) and others. In these cases, the court made a distinction between a situation where the contract had been performed in part and where performance was yet to commence. For the former the Federal High Court was held to have jurisdiction and for the latter the State High court.
The exclusive jurisdiction of the Federal High Court with respect to aviation, safety of aircraft and carriage of passengers and/or goods is not in doubt. In AWAWU OLULU OTOAKHIA V AERO CONTRACTOR NIGERIA LTD, 2014 LPELR – 23319, Ugochukwu Anthony Ogakwu JCA in his concurring judgment at pages 27 – 29 paragraphs C-G had this to say on the exclusive jurisdiction of the Federal High Court with respect to aviation matters:-
“…the jurisdiction of the Federal High Court as set out in Section 251 (1) of the 1999 Constitution as amended, includes such other jurisdiction as may be conferred upon the Federal High Court by an Act of the National Assembly. The
said Section stipulates:
‘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 – …” (Emphasis supplied).
The operative words for the purposes of the instant appeal are the words “in addition to”.It is a phrase which has been defined in Dictionary.com LLC online Dictionary as meaning: ‘the act or process of adding or uniting; the result of adding; something added.’In effect, in addition to the items enumerated in Section 251 (1) (a) (s) of the Constitution, the Federal High Court also has exclusive jurisdiction in respect of any matter in which an Act of the National Assembly confers jurisdiction on it.
In this regard, the provisions of the Federal High Court (Amendment) Decree [Now Act] No. 60 of 1991 are relevant. Inter alia, it stipulates as follows
in Section 2. (7) (1) (1), (3) and (5):
“2.(7)(1) – The Court shall to the exclusion of any other Court have original jurisdiction to try civil causes and matters connected with or pertaining to- (L) aviation, safety of aircraft and carriage of passengers and goods by air and meteorology
(3) where jurisdiction is conferred upon the Court under sub-section (1) and (2) of this section, such jurisdiction shall be construed to include the jurisdiction to hear and determine all issues relating to, arising from or ancillary to any such subject matter.“
“(5) Notwithstanding anything to the contrary contained in any other enactment or rule of Law including the Constitution of the Federal Republic of
Nigeria, any power conferred on a State High Court or any other court of similar jurisdiction to hear and determine any civil matter or proceedings shall
not extend to any matter in respect of which jurisdiction is conferred on the court under the provisions of this Section.” (Emphasis supplied)
By this stipulation, the National Assembly has conferred on the Federal High Court, the additional jurisdiction, to the exclusion of any other court, to
try civil causes and matters “connected with or pertaining to carriage of passengers and goods by air”, and the said jurisdiction shall be construed to
include the jurisdiction to hear and determine all issues relating to, arising from or ancillary to, for the purposes of this appeal, carriage of passengers
and goods by air.
By the provisions of Section 315 (4) (b) of the 1999 Constitution, the Federal High Court (Amendment) Decree [now Act] No. 60 of 1991 is an existing law which by Section 315 (1) (a) of the Constitution shall have effect and shall be deemed to be an Act of the National Assembly.
The Appellant’s case is that the Respondent breached the contract of carriage which he had with it, to be carried by air from Lagos to Benin. That instead of taking him to Benin, the Respondent took him to Warri. It seems as clear as crystal that the Appellant’s claim is in respect of carriage of passengers by air in respect of which exclusive jurisdiction has been vested in the Federal High Court by the Section 2 (7) (1) (1) of the Federal High Court (Amendment) Decree [now Act] No. 60 of 1991; a jurisdiction which is construed to include
all issues relating to, arising from or ancillary thereto, by virtue of the provisions of Section 2 (7) (3) of the said Decree [now Act] No. 60 of 1991.”
The above quotation from Awawu Olulu Otoakhia V Aero Contractor Nigeria Ltd,[1] provides an elaborate understanding on the jurisdiction of the Federal High Court in the area under discussion. However, the Court of Appeal in Klm Royal Dutch Airline V Idehen[2] Per Yargata Byenchit Nimpar JCA held, “The question to ask is whether the contract allegedly breached is one for carriage by air? The provision is quite clear and straight forward and it does not include a mere contract relating to carriage by air if carriage by air has not commenced at all. It is only when the cause of action is intricately connected with being on an aircraft and injuries or any event untoward occurs or where goods are in an aircraft and something happens, that gives a claimant a cause of action under the Federal High Court”.
The court went further and held that the cancellation of the return flight of the Claimant was within the jurisdiction of the Federal High Court because the contract of carriage by air had commenced and the 1st leg of the fight had been concluded. It was a two way ticket and the 1st carriage had taken place, what became an issue was the return leg of a two way contract. The court held that if the contract had not been part performed, then the claim will come under the State High Court. See page 15 paragraphs A-B. [3]
The court therefore made a distinction between a situation where the contract had been performed in part and where performance was yet to commence. For the former the Federal High Court was held to have jurisdiction and for the latter the State High court.
However in Mekwunye V Emirates Airline,[4] the Appellant had bought the Respondent’s airline electronic ticket, through the Respondent’s employee to fly with the Respondent from Dallas – Houston – Dubai – Lagos and back. Despite the fact that her ticket was confirmed 3 times before her travel date of 17th December 2007, upon her arrival at Dallas airport on 17th December 2007, she was denied boarding for no reason. She was only told the ticket had been cancelled. She was not informed prior to 17th December 2007. The Respondent did not make alternative travel plans nor provide her accommodation. The Appellant, embarrassed, was constrained to buy another electronic ticket through her father to travel by another airline by a longer route which took her 48hours.She sued the Respondent at Federal High Court for the refund of both tickets and general damages for breach of contract and costs. The court found in favour of the Appellant. The Court of Appeal reversed the judgment of the trial court. The Supreme Court upheld the judgment of the trial court – Federal High Court.
Though the issue of jurisdiction was not raised in Mekwunye V Emirates Airline at the Supreme Court, however the Supreme Court having upheld the judgment of the trial Federal High court would mean that it is a matter within the jurisdiction of the Federal High Court. If the part performance /non-performance distinction as applied in Klm Royal Dutch Airline V Idehen was applied in Mekwunye V Emirates, it means the State high Court and not the federal High court will have jurisdiction over the matter because there was no performance. The Supreme Court did not distinguish between part performance and non-performance of the contract of carriage of passengers by air.
Based on the Supreme Court decision in Mekwunye V Emirates Airline, it would seem that once any matter relates to aviation, safety of aircraft and carriage of passengers and/or goods, the Federal High has jurisdiction. This I believe will remove any likely complications which may arise in future. Also, it is safer to proceed first to the Federal High Court in such matters since the Federal High Court has the power to transfer matters to the State High Court, Section 22(2) of the Federal High Court Act provides that, “No cause or matter shall be struck out by the Court merely on the ground that such cause or matter was taken in the Court instead of the High Court of a State or of the Federal Capital Territory, Abuja in which it ought to have been brought, and the judge of a Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory Abuja in accordance with Rules of Court to be made under Section 44 of this Act.” In NSA & Ors V. Hon. Ag of the Federation & Minister of Justice & Ors,[5] the court held that the word “may” in s 22(2) of the FHC Act, must be construed as imposing an obligatory duty.
[1] 2014 LPELR – 23319.
[2] (2017) LPELR – 4357 (CA) p 14 paras B- D.
[3] KLM Dutch Airlines V Taher (2014) 3 NWLR (PT 1393) 17.
[4] (2019) LPELR. 46553 (SC) (delivered 1st February, 2019).
[5] (2018) LPELR-45278(CA).