Judicial Review: Tolulope Aderemi Vs. Kenya Airways Limited

Overview:

In the case of Tolulope Aderemi v. Kenya Airways LTD, the Honourable Court addressed a passenger’s claim against Kenya Airways Ltd. for a significant flight delay. The plaintiff, Mr. Tolulope Aderemi, sought compensation for the inconvenience and untold hardship he incurred due to the wanton delay of flight KQ535D from Lagos, Nigeria to London through Nairobi initially scheduled for Saturday, 3^rd of August, 2019. The Court held that the Defendant’s summary cancellation, wanton delay of journey and inexplicable failure to communicate the rescheduling amounted to negligence. Also that the Defendant’s failure to notify the Claimant of the flight cancaellation amounted to a breach of contract by air. The Court also awarded the sum of $5,180 to the Claimant.

Facts

Mr. Tolulope Aderemi was scheduled to fly from Lagos, Nigeria to London through Nairobi on Saturday, the 3^rd of August, 2019. The flight, operated by Kenya Airways LTD, was delayed to Sunday, the 4^th of August, 2019. Mr. Tolulope Aderemi claimed that the failure of the airline to provide prompt and adequate communication of the delay amounted to negligence and also occasioned untold hardship and inconvenience to him.

Mr. Tolulope Aderemi instituted an action before the Honourable Justice Faji, sitting at the Federal High Court, Ikoyi, Lagos, seeking compensation under the Montreal Convention and the Nigerian Civil and Aviation Act, which governs international air travel and provides for passenger rights in cases of delays, cancellations, and other disruptions. Upon hearing the arguments of parties, the Honourable Court dismissed reliefs number 4 and 5 claimed by the Plaintiff and in the same vein, awarded the sum of $5,180.00 (Five Thousand One Hundred and Eighty Dollars) in favour of the Plaintiff.

Reliefs claimed by the Plaintiff

The reliefs clamed against the Defendant were as follows;

1. A DECLARATION that the summary flight cancellation, wanton delay of journey, inexplicable failure of the Defendant to promptly communicate the rescheduling of flight KQ535D from Saturday, the 3^rd of August 2019, to Sunday, the 4^th of August, 2019; the flight from Lagos, Nigeria to London through Nairobi amounts to negligence.
2. A DECLARATION that the failure of the Defendant to notify the Plaintiff and his agent of the alleged cancellation/rescheduling of flight KQ535D from Saturday, the 3^rd of August, 2019, to Sunday, the 4^th of August, 2019 amounts to breach of contract by air.
3. A DECLARATION that the Defendant was negligent in handling the summary flight cancellation, wanton delay of journey and failure to notify the Plaintiff of the rescheduling of flight KQ535D from Saturday, the 3^rd of August 2019, to Sunday, the 4^th of August, 2019.
4. A DECLARATION that the Defendant’s failure to airlift the Plaintiff’s passenger luggage on the return flight from London to Nairobi with the attendant inconvenience and untold hardship foisted on the Plaintiff amounts to negligence.
5. A DECLARATION that the Defendant’s failure to airlift the Plaintiff’s passenger luggage on the return flight from London to Nairobi with the attendant inconvenience and untold hardship foisted on the Plaintiff amounts to breach of contract of carriage by air.
6. The sum of $5,180.00 (Five Thousand One Hundred and Eighty Dollars) representing the Defendant’s liability under the Montreal Convention for the delay in airlifting the Plaintiff and rescheduling of flight KQ535D from Saturday, the 3^rd of August 2019, to Sunday, the 4^th of August, 2019.
7. General damages in the sum of N50,000,000 (Fifty Million Naira) being compensation for anguish , psychological trauma and mental distress occasioned by the summary cancellation and or rescheduling of Flight KQ535D from Saturday, the 3^rd of August 2019, to Sunday, the 4^th of August, 2019 and subsequent delay/failure to airlift the Plaintiff’s Passenger luggage on the return flight from London to Nairobi.

Rationale of the Court

The Honourable court after considering the arguments of both parties formulated two issues for legal determination to wit;

• Whether in view of the state of the parties’ pleadings, the evidence led and all surrounding facts and circumstances of this case, the Plaintiff has made out a case of Breach of contract of carriage by air and willful misconduct?
• If issue 1 is answered in the affirmative, whether the Plaintiff is entitled to the reliefs sought?

The court went further stating that the Plaintiff’s claim is two-fold to wit;

1. Cancelation/delay of his flight from Lagos to Nairobi
2. Delay in delivering his checked-in luggage on his return from London through Nairobi to Lagos.

The Honourable court in addressing the issues of parties, rightly identified thus;

“I think it is fairly common ground that the instant suit involves an International Carriage by Air (Colonies, Protectorate & Trust Territories) Order, 1953 which became operational on the 1^st of January, 1954.The MontrealConvention was ratified by Nigeria and domesticated by virtue of the Civil Aviation Act (CAA) of 2006. Even though there is a new Civil Aviation Act of No. 30 of 2022 which came into force on the 16^th of August, 2022, the applicable law to this suit is CAA 2006 which was the law in force when the cause of action arose in 2019.”

In view of the provisions of Article 19 of the Montreal Convention the court stated that there is no liability if the carrier can show that it took all measures that could reasonably be required to avoid the damage or that it was impossible for it to take said measures.

In light of the above, the court identified that Kenya Airways Ltd gave no explanation whatsoever for the delay. In the wordings of the court;

“There is no evidence of steps taken by the carrier to avoid the delay. There is no reference whatsoever to the reasons for the delay a fortiori an explanation of same or an indication of steps taken by the carrier to prevent the delay. It is also not in dispute that the carrier has a duty to notify the passenger in the event of a delay in flight. Much has been said about this.”

This ultimately led the court to find the Defendant’s conduct to be willful and consequently deprives it of the limitation protection in article 22 (1) (2) of the Montreal Convention. In a similar vein, the Honourable court opined thus;

“I find the totality of the of the defendant’s conduct on this score to be willful. It therefore seems to me that the conduct of the defendant herein deprives it of the limitation protection in Article 22 of the Montreal Convention and at the same time falls squarely within Article 22 (5) of the Montreal Convention as the failure to communicate the delay and the attendant failure to explain the delay on the particular day was done with intent to cause damage”

So in essence, the failure of the Defendant to communicate the delay, explain the delay and show the necessary steps it took to prevent said delay, would lead the court to invariably construe that said delay was done with intent to cause damage. In the wordings of the Honourable Court;

“In the instant case, the combination of the failure to notify the Plaintiff or his agent of the delay in the flight as well as the failure to explain why the delay and the steps taken to prevent same from happening show a willfulness on the part of the defendant to cause damage to the Plaintiff.”

The rationale of the court as pointed out in the above is particularly instructive as in the instant case, the Plaintiff claimed an amount in line with the limitation clause in Article 22 of the Montreal Convention. It goes without saying that Mr. Tolulope Aderemi would have been entitled to more than the $5,180.00 (Five Thousand One Hundred and Eighty Dollars) he claimed. According to the Honourable court, “the Plaintiff however claims a sum which he contends is the limitation figure. I cannot therefore give more than the plaintiff has claimed.”

With regards to the second half of the Plaintiffs claim, the Honourable court in identifying whether there was indeed a delay in delivering the plaintiff’s checked-in luggage, stated that the answer to said question is contained in Article 17(3) Montreal Convention.

Said Convention provides;

If the carrier admits the loss of a checked baggage or if the checked baggage has not arrived at the expiration of the twenty-one days after the date which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage.

The court interpreting the above provision stated that;

“It is not in issue that the checked in luggage arrived within 21 days of the date it was supposed to arrive. It is only if it does not so arrive that the passenger is entitled to enforce the provisions of the Montreal Convention on delay in delivering the checked-in luggage.”

Following the above, the court held that the claim for delay in delivery of Plaintiffs checked in luggage is not actionable as the luggage was delivered per the requirements of the law.

Implications

This judgment undoubtedly underscores the obligations of airlines under the Montreal Convention, particularly regarding delayed flights. The court’s decision has several implications which include:

1. Liability for Delays: The Honourable court’s decision makes clear that airlines cannot evade liability for delays caused to passengers without showing that it took reasonable measures to prevent said delay.The decision of the court also emphasizes the airline’s duty of care towards its passengers.

In the wordings of the Honourable court;

“the defendant did not only breach the contract of carriage to carry the Plaintiff on the 3rd of August 2019 but also took no measures to prevent the delay or at best failed to show what steps it took to avoid the delay. It also failed to notify the plaintiff of the change in advance of the flight. That seems to be negligence. That is also akin to willful misconduct, a term which must be view of the peculiar circumstances of the case. In the instant case, the combination of the failure to notify the Plaintiff or his agent of the delay in the flight as well as the failure to explain why the delay and the steps taken to prevent same from happening show a willfulness on the part of the defendant to cause damage to the Plaintiff.”

The foregoing implies that when an airline is unable to discharge its burden of proof and show that it not only notified the passenger of the impending delay but that it also took certain steps to avoid the delay. The court would infer awillfulnesson the part of the airline to cause damage to the passenger.

Such inference implies that the airline would be unable to plead the limitation clause contained in Article 22(1)(2) of the Montreal Convention and would rather be liable under the provisions of Article 25 of the Montreal Convention.

2. Passenger Rights: The judgment also reinforces passengers’ rights to seek compensation for significant delays, particularly when airlines fail to fulfill their duty of care. This includes the right to receive timely information, assistance, and compensation for damages and any inconvenience.
3. Obligations of airlines: The judgment illustrates the obligations of airlines under the Aviation laws to provide adequate care and communication during delays. This case serves as a precedent, encouraging airlines to adopt more robust contingency plans and ensure compliance with passenger rights regulations.
4. A party cannot benefit from its wrongdoing: The Honourable court in the instant case also reaffirms the equitable principle of Ex turpi causa non oritur actio. In the wordings of the Honourable court, “It seems strange to me that a party would rely on the inadequacy of its system in justifying its wrongdoing.”
5. Double compensation: the refusal of the Honourable court in the instant suit to award both claims of $5,180.00 (Five Thousand One Hundred and Eighty Dollars) and N50,000,000 (Fifty Million Naira) by the Plaintiff, reaffirms the rule against double compensation as succinctly held in the case of British Airways v. Atoyebi (2014) LPELR-23120(SC).

Conclusion:

The instant suit is a pivotal case reinforcing the protections afforded to passengers under the Montreal Convention. The judgment serves as a reminder to airlines of their obligations to notify passengers of delays and take such steps to avoid such delays. As flight delays and disruptions remain a common issue in air travel in Nigeria, this case may influence future litigation and encourage airlines to adopt a more passenger-friendly approach.

The decision of the court in favor of the Plaintiff sets a meaningful precedent, ensuring that passengers have recourse and that airlines in Nigeria are held accountable for service failures. This decision will likely prompt airlines to review and enhance their contingency plans and communication strategies to avoid similar liabilities in the future.