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Before Their Lordships
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
VIRGIN ATLANTIC AIRWAYS –Appellant
AND
MRS. FRANCESCA PABLO AMARAN –Respondent
…………………….A……………………
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Lagos, coram C. J. ANEKE, J delivered on the 30th November, 2016 in suit No: FHC/L/CS/50/2012 wherein judgment was entered for the Respondent and the Court pronounced the following award:
i. The sum of N216,000.00(Two Hundred and Sixteen Thousand Naira) paid for return journey from London to Accra on the e-ticket;
ii. 21% interest per annum on the said N216,000.00 from the 2th November, 2011 to 30/11/2016
iii. 65,000 Francs
iv. the Plaintiff is entitled to the cost of N100,000.00 (one Hundred Thousand Naira) against the Defendant.
v. 10% interest per annum is awarded on the judgment debt
vi. all other claims of the plaintiff are hereby dismissed.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on the 23/1/2017 and dated same day setting out a sole ground of Appeal.
The Respondent as Plaintiff took out a writ against the Appellant claiming certain reliefs which she contended arose from a breach of contract for international carriage by air with the Appellant when she and her son were denied boarding on her e-ticket. The reliefs state thus:
i. The refund of the sum of N216,000.00 (Two hundred and sixteen Thousand Naira) being the balance of the upper class fare from Lagos to Accra by carriage by Air by the 1st Defendant Aircraft, which they failed to honour on the 20th of November 2011, by denying the Plaintiff and her son, to board the 1st defendant’s Aircraft.
ii. The payment of the sum of N10,000,000.00 (Ten Million Naira) being General Damages for the humiliation, stress, inconvenience, embarrassment, ridicule and being made to look like a fraudulent person by the Defendants in their refusal to allow the Plaintiff and her son board the flight on the 20th of November 2011, which they had a valid and confirmed ticket.
iii. The payment of the sum of N3,000,000,00 (Three Million Naira) being legal cost for the institution of this Action.
iv. Interest on all sum due to the plaintiff at the rate of 21% per annum from the 20th November 2011 till judgment is delivered, and thereafter at the same rate or any other rate as this Court deems fit till final liquidation of the Judgment sum.
The Appellant denied liability and upon due trial, the Court below entered judgment in favour of the Respondent as per the award produced above, aggrieved, the Appellant filed this appeal.
The Appellant filed its Brief of Argument on the 8/2/2017 dated same date and it distilled a lone issue thus:
Whether the Federal High Court was right in relying on the convention for the unification of certain rules relating to international carriage by air, 1929 (otherwise known as the ???Warsaw Convention) as the basis of its judgment in favour of the Respondent, when the said law had been repealed by virtue of ARTICLE 51(1) OF THE ACT TO REPEAL THE CIVIL AVIATION ACT CAP 51 LAWS OF THE FEDERATION OF NIGERIA 1990 AS AMENDED AND TO RE-ENACT THE CIVIL AVIATION ACT OF CIVIL AVIATION ESTABLISHMENT OF THE NIGERIAN CIVIL AVIATION AUTHORITY AND FOR RELATED MATTER (OTHERWISE CALLED THE CIVIL AVIATION ACT 2006).
The Respondent on her part formulated two issues for determination thus:
i. Whether the learned trial judge was not at liability (sic) to use the Warsaw Convention or Montreal Convention as provided under Articles 15:3:1, 15:3:5 and 15:3:7:1, of the appellant conditions of carriage where the contract of carriage between the appellant and the respondent provided as follows:
GENERAL LIMITATION:
ARTICLE 15:3:1
Whenever the Warsaw Convention or the Montreal convention applies to your carriage, our liability will be subject to the rules and limitations of the applicable convention, as amended by EC regulation 2017/97 and in the case of passenger delay, as amended by EC regulation 261/2004.
Except where other specific provision is made in these conditions of carriage, we shall be liable to you only for recoverable compensatory damages for proven losses and cost in accordance with the Warsaw Convention or the Montreal as applicable.
Article15:3:7
Nothing in these conditions of carriage
Article15: 3: 7:1
Shall waive any exclusion or limitation of our liability under the Warsaw Convention or the Montreal Convention applicable laws unless otherwise expressly stated by us or.
ii. Whether the appellant not having any complaint of miscarriage of justice against the judgment, the judgment should not be set aside based on the
i. The sum of N216,000.00(Two Hundred and Sixteen Thousand Naira) paid for return journey from London to Accra on the e-ticket;
ii. 21% interest per annum on the said N216,000.00 from the 2th November, 2011 to 30/11/2016
iii. 65,000 Francs
iv. the Plaintiff is entitled to the cost of N100,000.00 (one Hundred Thousand Naira) against the Defendant.
v. 10% interest per annum is awarded on the judgment debt
vi. all other claims of the plaintiff are hereby dismissed.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on the 23/1/2017 and dated same day setting out a sole ground of Appeal.
The Respondent as Plaintiff took out a writ against the Appellant claiming certain reliefs which she contended arose from a breach of contract for international carriage by air with the Appellant when she and her son were denied boarding on her e-ticket. The reliefs state thus:
i. The refund of the sum of N216,000.00 (Two hundred and sixteen Thousand Naira) being the balance of the upper class fare from Lagos to Accra by carriage by Air by the 1st Defendant Aircraft, which they failed to honour on the 20th of November 2011, by denying the Plaintiff and her son, to board the 1st defendant’s Aircraft.
ii. The payment of the sum of N10,000,000.00 (Ten Million Naira) being General Damages for the humiliation, stress, inconvenience, embarrassment, ridicule and being made to look like a fraudulent person by the Defendants in their refusal to allow the Plaintiff and her son board the flight on the 20th of November 2011, which they had a valid and confirmed ticket.
iii. The payment of the sum of N3,000,000,00 (Three Million Naira) being legal cost for the institution of this Action.
iv. Interest on all sum due to the plaintiff at the rate of 21% per annum from the 20th November 2011 till judgment is delivered, and thereafter at the same rate or any other rate as this Court deems fit till final liquidation of the Judgment sum.
The Appellant denied liability and upon due trial, the Court below entered judgment in favour of the Respondent as per the award produced above, aggrieved, the Appellant filed this appeal.
The Appellant filed its Brief of Argument on the 8/2/2017 dated same date and it distilled a lone issue thus:
Whether the Federal High Court was right in relying on the convention for the unification of certain rules relating to international carriage by air, 1929 (otherwise known as the ???Warsaw Convention) as the basis of its judgment in favour of the Respondent, when the said law had been repealed by virtue of ARTICLE 51(1) OF THE ACT TO REPEAL THE CIVIL AVIATION ACT CAP 51 LAWS OF THE FEDERATION OF NIGERIA 1990 AS AMENDED AND TO RE-ENACT THE CIVIL AVIATION ACT OF CIVIL AVIATION ESTABLISHMENT OF THE NIGERIAN CIVIL AVIATION AUTHORITY AND FOR RELATED MATTER (OTHERWISE CALLED THE CIVIL AVIATION ACT 2006).
The Respondent on her part formulated two issues for determination thus:
i. Whether the learned trial judge was not at liability (sic) to use the Warsaw Convention or Montreal Convention as provided under Articles 15:3:1, 15:3:5 and 15:3:7:1, of the appellant conditions of carriage where the contract of carriage between the appellant and the respondent provided as follows:
GENERAL LIMITATION:
ARTICLE 15:3:1
Whenever the Warsaw Convention or the Montreal convention applies to your carriage, our liability will be subject to the rules and limitations of the applicable convention, as amended by EC regulation 2017/97 and in the case of passenger delay, as amended by EC regulation 261/2004.
Except where other specific provision is made in these conditions of carriage, we shall be liable to you only for recoverable compensatory damages for proven losses and cost in accordance with the Warsaw Convention or the Montreal as applicable.
Article15:3:7
Nothing in these conditions of carriage
Article15: 3: 7:1
Shall waive any exclusion or limitation of our liability under the Warsaw Convention or the Montreal Convention applicable laws unless otherwise expressly stated by us or.
ii. Whether the appellant not having any complaint of miscarriage of justice against the judgment, the judgment should not be set aside based on the
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