Case: Did Aero contractor breach the contract of carriage of transportation by air, having failed to transport Mr Ifeanyi Chukwujekwu from kotoka international airport Accra, to Murtala Muhammed International Airport Lagos?
This case is particularly important to Nairametrics Research because it speaks to the right of customers to be served right by service providers and their right to receive full value for their money.
Most air passengers in Nigeria get stranded at the airport as a result of cancellations and delays by airlines without knowing they have certain rights in that regard. This case serves as a pointer to airlines that do not inform passengers of their flight status. It also speaks to the fact that customer relations need to be improved on the part of service providers in Nigeria. Let’s explore this case.
Financial damages sought
DAMAGES in the sum of N150, 000, 000 (One Hundred and fifty million Naira). Being general damage for breach of contract.
10% interest annually on the judgement sum from the date of judgement till liquidation of the said judgement sum.
On March 3, 2013, Mr Ifeanyi Chukwujekwu purchased a return ticket for N62,941.00 from Aero Contractors at their Transcorp Hilton office in Abuja to be conveyed from Murtala Muhammed International Airport, Lagos to Kotoka International Airport, Accra, Ghana on March 11, 2013 and from the Accra airport back to the Lagos airport on March 16, 2013.
This purchase meant he had entered into a contract of carriage or agreement for transportation by air with Aero Contractors to be conveyed to and fro his destinations.
However, Ifeanyi claimed the defendant breached the contract as stipulated by his air ticket by conveying him to Accra from Lagos on March 11, 2013 by 7:15 am via flight no AJ2001 but failed to return him back to Lagos on March 16, 2013 via flight AJ2002 by 7:45 am as booked. He said he had to find his way back to Lagos at his own expense.
On the scheduled date of return, Mr Ifeanyi claimed he went to the Accra airport before 6:00 am but there was neither an Aero Contractors aircraft on ground nor any sign of its presence within the airport.
While accounting to the judge, Ifeanyi said he was stranded which resulted in him begging for money at the airport. He claimed he had no other money after earlier purchasing the ticket from the defendant as he did not foresee or plan for any other expenditure in Accra.
As begging for money from people did not yield fruit, he then sold his blackberry and Samsung phones at a giveaway price in an effort to raise money for his trip. However, the money was still not enough to purchase his return ticket.
He claimed one Apostle Ekow Ansah Aggray then agreed to lend him $100 which he was to pay back upon his return to Nigeria. Ifeanyi in turn collected Mr Ekow‘s complimentary card and was able to purchase and board an Arik Air flight back to Lagos on the same day with the said money he borrowed and the proceeds of his mobile phones that he sold.
Ifeanyi averred that there was neither any explanation, apology or arrangement of any sort made by Aero Contractors to cushion the effect of the incident on that day (March 16, 2013) or afterwards, hence, he instituted a suit against them.
Mr Ifeanyi testified before the court and was cross-examined as exhibit PW1. He tendered other exhibits which included: His international passport as PW1-A, Mr Ekow’s complimentary card as PW1-B, access bank deposit slip for $2,087.00 dated 16/3/13 as PW1-C, Electronic copy of flight no AJ2002 and certificate in compliance with section 84(2) (a) of the evidence act 2011 on computer-generated documents dated 1/11/2014 as exhibit PW1-D, ticket counterfoil for flight no. AJ2001 from Lagos to Accra as exhibit PW1-E and ticket counterfoil for flight no.0705 from Accra to Lagos as exhibit PW1-F.
The Defendant’s Claims
The defendant claimed it satisfactorily performed its outbound flight as agreed with the plaintiff but could not operate the return flight as scheduled because of an industrial action embarked upon by the National Association of Aircrafts Pilots and Engineers (NAAPE), the Air Transport Services Senior Staff Association of Nigeria (ATSSSAN) and the National Union of Air Transport Employees (NUATE) collectively referred to as Trade Unions.
Aero Contractors claimed a staff of theirs at Hilton Abuja where the contract was made, had taken the plaintiff through their pre-contract procedure by explaining terms and conditions of carriage before he signed the acceptance and made payment.
The defendant told the court that the industrial action hindered business operations during that period and consequently, they could not operate the return flight already scheduled.
In a bid to stop the strike, the defendant approached an industrial court on March 5, 2013, of which a ruling was given on March 8, 2013, to stop the strike. The defendant proceeded with its business as the court had restrained the Trade Unions from embarking on the action.
However, the Trade Unions still embarked on the strike on March 13, and it lasted till April 2 which resulted in the defendant’s inability to operate the return ticket earlier scheduled to bring back the plaintiff and other customers to Lagos from Accra on March 16, 2013.
They claimed their inability to operate the plaintiff’s scheduled flight was due to circumstances beyond their control and they had attempted to reach all customers who had earlier booked to notify them of the situation.
They claimed their Accra station manager sent bulk text messages to all customers including the plaintiff on March 15, informing them that their earlier scheduled flights were cancelled and notices were also displayed in visible places at the Kotoka Airport in Accra, Ghana.
The defendant claimed that by the virtue of its contract with the plaintiff, it is exonerated from any liability resulting from flight cancellation as an express term of the contract of carriage earlier accepted by the plaintiff reads “there shall be no refunds for flight cancellations due to weather delay or any kind of force majeure.”
The defendant tendered documents numbered DW1 A 1-19 as exhibits and called one witness. Exhibit DW1 -A2-A3 was the order of the industrial court made on March 8, 2013 to stop the strike action. It also tendered a printout of papers containing the message claimed to have been sent to notify customers of their flight cancellations.
During cross-examination, the witness explained that in the face of cancellation, the airline boards their passengers on an available airline or refunds the amount the passengers purchased their tickets. However, she could not affirm if such was done in the case of the plaintiff.
Arguments / more information
Part 19 of the consumer protection regulation which talks about passengers rights and airline obligations, provided ways by which a consumer can seek redress in cases of delays or cancellations of flights and an air passenger holds a right to compensation.
Part 19.5.1 addresses cancellations. It reads in part, “In case of cancellation of a flight, passengers shall be offered assistance by the operating air carrier in accordance with section 19.6 and section 19.7(1).
“The relationship between air passengers and airlines is a contractual relationship. Hence, if there is a need to cancel a flight due to unforeseen circumstances passengers are entitled to a reasonable notice ahead.”
The defendant claimed that its staff had sent out text messages to customers on March 15, to inform them about flight cancellation of which the plaintiff was among. The plaintiff, on the other hand, argued that he did not receive such messages and that the defendant’s aircraft or presence was not seen at the airport on the scheduled day of the flight.
The plaintiff averred that there is no evidence that the defendant sent text messages to him or/and that it pasted notices at the airport. He argued that the printout of papers containing the message claimed to have been sent which was tendered by the defendant as an exhibit does not constitute evidence of sending and receiving of the said notice by him.
The defendant relied on the exemption clause contained in the standard form contract between the parties, claiming that the clause exonerated it from any liability resulting from flight cancellation.
However, the plaintiff argued that the said exemption clause which the defendant relied upon did not say that, in the event of flight cancellations due to weather delay or any kind of force majeure, the defendant will be absolved from its responsibilities of lifting passengers. He said the alleged strikes by workers of the defendants is neither a weather delay nor a force majeure in the context of the exemption clause.
Mr Ifeanyi sought the court to determine whether the industrial action constituted a weather delay or “force majeure” that absolves the defendant from its responsibilities of transporting him back to Lagos.
He also argued that the industrial action was foreseen by the defendant that’s why it made an attempt to stop the strike by getting an order of the court to that effect.
Mr Ifeanyi urged the court to hold that the exemption clause did not absolve the defendant in this instant and therefore has breached the contract of carriage.
Aero contractor averred that its inability to operate the plaintiff’s scheduled return flight was due to circumstances beyond its control and that it had obtained an order of the court in an attempt to stop the strike.
What the Judge ruled
After hearing both sides, Hon. Justice I.E Ekwo, among other considerations, identified the following:
- The judge held that the averment of the defendant did not support the assertion that what took place was unusual and unforeseen circumstances beyond its control, the consequence of which could not have been avoided if all due care had been exercised.
- The judge noted that the said exhibit DW1 A2-A3 was already in existence before the date of the plaintiff’s scheduled flight.
- Thus justice Ekwo insisted that the defendant was notified of the impending strike for it to initiate an action at the industrial court; hence, the defendants cannot use the industrial action as “unusual and unforeseen.”
- He also noted that the said exparte order obtained by the defendant cannot be used as a magic wand to avoid liability in contract of carriage between the carrier and a person who was neither party nor privy to an action between the carrier and its employees.
- The judge said it would be bad for the law if the carrier is allowed to collect money for a contract of carriage and fail to perform it and still assert that the plaintiff is not entitled to any refunds on cancellation due to weather or any kind of force majeure.
He, therefore, held that the “force majeure” opined by the defendant is not applicable to this case. The judge held that the case of the plaintiff has been established by a preponderance of evidence as required by law and must succeed.
He also held that there was no credible evidence that aero contractor or its servants and agents took all measures that could reasonably be required to avoid the damage.
Justice Ekwo awarded the sum of N10 million against the defendant being general damages for breach of contract and subjecting the plaintiff to embarrassment and humiliation, with a 10% interest annually on the judgement sum from the date of judgement till full liquidation of the said judgement sum.
“A declaration is hereby made that the defendant having failed to carry or transport the plaintiff by air as scheduled has breached the contract of carriage or transportation by air between it and the plaintiff,” the judge ruled.