Joseph Ibidapo Vs Lufthansa Airlines (1997)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C.

By a Writ of Summons filed in the Lagos High Court, the plaintiff Mr. Joseph Ibidapo claims against the defendant, Lufthansa Airlines as follows:-

“The plaintiff’s claim is for negligence in the care and custody of plaintiff’s baggage containing an IBM typewriter delivered to the defendant at Lagos for delivery in Frankfurt-Germany but which said baggage remains undelivered despite repeated demands. The plaintiff also claims in the alternative against the defendant as bailees for reward for non-delivery of their baggage and in the further alternative on contract. The plaintiff also claim damages for loss of use of his typewriter.”

Parties filed and exchanged pleadings in which issues were joined. The most relevant of the plaintiff’s Statement of Claim are paragraphs 13 – 18 which I reproduce hereunder.

13. The defendant was at all material times under a duty as a bailee for reward to re-deliver the plaintiff’s baggage and despite repeated demands the defendant, has failed to deliver the plaintiff’s baggage in Germany or at all. The plaintiff will at the trial rely on the defendant’s letters to establish non-delivery.

PARTICULARS OF BREACH OF DUTY AS BAILEES FOR REWARD

The defendant having possession of the plaintiff’s typewriter as bailee for reward failed to exercise reasonable care while in custody of the plaintiff’s baggage by failing to put same on board it’s flight to Germany.

14. Further and in the alternative, the defendant was under a contractual obligation to re-deliver the plaintiff’s baggage but has failed to do so despite repeated demands. (At the trial of this action the plaintiff shall refer to and rely on his passenger air-ticket and baggage tags for their full terms and effect.)

PARTICULARS OF BREACH OF CONTRACT

Securely by charging a rate and accepting the plaintiff’s baggage for carriage and delivery the defendant undertook to safely and securely carry the plaintiff’s baggage between Lagos and Frankfurt and to re-deliver same on demand. Despite repeated demands by the plaintiff the defendant has failed to re-deliver the plaintiff’s baggage.

15. The plaintiff will contend at the trial that the defendant was a common carrier of the plaintiff’s baggage and the defendant is guilty of a breach of it’s duty as such common carrier.

PARTICULARS OF SPECIAL DAMAGE

1. $1,785 U.S. Dollars being cost of the typewriter purchased in the United States.
2. The equivalent prevailing cost of the IBM typewriter in Nigeria.
3. In the alternative the plaintiff demands a replacement of his typewriter. .

PARTICULARS OF BREACH OF DUTY AS COMMON CARRIER

i. The defendant accepted to carry for reward the plaintiff’s baggage on it’s Lagos flight bound for Frankfurt and to deliver on demand the aforesaid luggage.

ii. The defendant as aforesaid failed to deliver said Luggage in Frankfurt or at all.

16. Further and in the second alternative the plaintiff contend that the defendant was negligent in the care and custody of the plaintiff’s Luggage which negligence resulted in the loss and or non-delivery/mis-delivery of the aforesaid luggage.

The plaintiff will contend at the trial that the defendant owed them a duty of care which duty was breached by the defendant by reason of non-delivery of the plaintiff’s baggage.

Particulars of Negligence

(i) The defendant took possession of the plaintiff’s baggage in Lagos for re-delivery in Frankfurt but failed to do same.

(ii) The Defendant failed to supervise the loading process which resulted in the failure of the defendant to load plaintiff’s baggage on the aircraft and to take adequate measures required of the defendant to ensure that the baggage was put on board.

(iii) The defendant failed to exercise due diligence of those concerned in Air transport undertaking to ensure that the plaintiff’s baggage was safely and securely stowed.

(iv) The defendant failed to take measures to prevent the reasonably forseable act of stealing which deprived the plaintiff of his property.

18. By reason of the diverse matters aforesaid, the plaintiff has suffered loss and sustained damage.

And the plaintiff claims damages, interest and cost of this action.”

In paragraphs 7 and 8 of the Statement of Defence the defendant pleaded thus:

“7. The defendant will raise an issue that the plaintiff’s action was not brought within 2 years from 17th January, 1987 which was the date when the aircraft, unto which the said baggage allegedly containing the typewriter was checked, arrived at its destination at Frankfurt, and accordingly the action is barred by virtue of Article 29(1) of the First Annex to the First Schedule to the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953.

8. Further or in the alternative, the defendant will contend that by reason of the matters aforesaid, the plaintiff’s right to damages herein (if any, which is denied) has been extinguished by virtue of

Article 29(1) of the First Annex to the First Schedule to the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953.”

By a Motion filed in the High Court, the defendant among other prayers sought, prayed as follows:-

“3. Setting down for hearing and disposing of the point of law raised in paragraphs 7 and 8 of the Statement of Defence filed in the above suit;

4. dismissing the above suit on the ground stated in the 1st schedule to this Motion on Notice.
5. In the alternative, dismissing the said action on the grounds set out in the 2nd Schedule to the Motion on Notice.”

For ease of reference and understanding of the issues involved in the suit, I reproduce below the 1st and 2nd Schedules annexed to the Motion on Notice:

“1st Schedule

(1) The contract, under which the alleged missing baggage was carried, being one for international carriage by air, is governed exclusively by the provision of the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air 1929 as adopted by and applied to Nigeria by the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953 (Public Notice No. 73 of 1953).

(2) Under the said Order, any action must be brought within 2 years reckoned from the date that the aircraft, on which the alleged missing baggage was carried, arrived at its destination.

(3) The aircraft which carried the plaintiff and the alleged missing baggage arrived at its destination, Frankfurt, on 17th January, 1987, but the Plaintiff did not file this action until 21st March, 1989.

2nd Schedule

Even if all the facts pleaded in the Statement of Claim were admitted the Plaintiff will not be entitled to any damages as the action was not brought within 2 years reckoned from the date that the aircraft, on which the alleged missing baggage was carried, arrived at its destination in Frankfurt.”

The learned trial Judge after hearing learned counsel’s arguments for and against the prayers referred to supra, concluded in his Ruling delivered on 20th December, 1991 as follows:-

“From the foregoing, the condition precedent that an action should be brought by the plaintiff within two years of the arrival or scheduled arrival of the aircraft at the destination admits of no negotiation between the parties. The defendant/applicants are therefore right to say that this action was not filed within the two year limitation. The action is therefore statute barred and is dismissed with costs assessed at N200.00”

Aggrieved by the decision of Segun J, the learned trial Judge, the plaintiff appealed to the Court of Appeal on one ground of Appeal from which the following 2 issues were raised in his brief:-

“1. Whether the Carriage by Air (Colonies, Protectorates, and Trust Territories) Order 1953, which implemented the “Convention for the Unification of Certain Rules relating to International Carriage by Air” (“The Warsaw Convention”) within the former colony and protectorate of Nigeria, is still relevant to and/or still in force in the Federal Republic of Nigeria, such that it can be regarded as “existing law” within the meaning of Section 274 of the Constitution of the Federal Republic of Nigeria 1979 (as amended).

2. If it is found that the aforesaid Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953 is no longer relevant to and/or in force in the Federal Republic of Nigeria, whether the aforesaid “Warsaw Convention” can have the force of law in Nigeria in the absence of any other statute enacted by the legislature to implement its provisions within the Federal Republic of Nigeria. ”

The defendant on his part formulated one issue in his brief which the learned President of the Court of Appeal rightly said was covered by Issue 2 in the plaintiff’s brief.

After a thorough and painstaking consideration of these issues as argued in the briefs filed, the learned President of the Court of Appeal finally concluded as follows:-

“I agree that the above issues are not in dispute in this appeal. So, with the concession made, and the issues raised in the appeal having been resolved against the appellant, I must come to the inevitable conclusion that this appeal must fail. It is accordingly dismissed. The decision of the lower Court is hereby affirmed. The respondent is entitled to costs assessed to N500.00”

Aggrieved by the Court of Appeal decision, the plaintiff has further appealed to this court. Henceforth the plaintiff and the defendant will be referred to in this judgment as the appellant and the respondent respectively.

In compliance with the Rules of this court the appellant and the respondent filed and exchanged briefs of argument.

In the brief filed by Mr. Agbakoba for the appellant, learned counsel formulated one issue for determination which reads:-

“Whether the Convention for the Unification of Certain Rules Relating to International Carriage by Air (The Warsaw Convention) is applicable to Nigeria to bar the Appellant’s claim and if not, whether the Court of Appeal was not wrong to dismiss the appellant’s appeal.”

The respondent also raised two issues in his brief for determination by this court, to wit:-

“(1) Whether the Imperial Order-in-Council known as the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953 (hereinafter called ‘the 1953 Order’ automatically ceased to have the force of law in Nigeria on the corning into effect on 1st October 1960 of the Nigeria (Constitution) Order-in-Council 1960 and was not saved by section 3(1) of the said Order-in-Council.

(2) If the answer to (1) is ‘no’, whether the 1953 Order has been repealed.”

The respondent’s two issues are subsumed in the single issue formulated by the appellant and for the purpose of determining this appeal, I shall adopt the appellant’s issue.

The facts involved in this case are not seriously in dispute and are as follows:

The appellant was a passenger on the respondent’s passenger aircraft travelling to Frankfurt from Lagos on 16th January, 1982. He checked in along with his IBM typewriter. On arriving at Frankfurt the next day, the typewriter was missing and he promptly lodged complaint with the respondent which promised to do everything possible to locate the missing typewriter. When the effort proved abortive, the respondent informed the appellant and offered to pay 749 Deutsche Marks as compensation. The appellant refused the offer made by the respondent and filed the present action against the latter for negligence, and claiming for damages, interest and cost of this action.

It was the contention of Mr. Agbakoba learned counsel for the appellant that the provisions of Sections 1 and 2 of the Carriage by Air Act 1932, were extended to the colony and protectorate of Nigeria by the Order-in-Council Order, 1953 and that on 1st October, 1960 when Nigeria became a sovereign state, the Carriage by Air [Colonies Protectorates &Trust Territories] Order 1953 became irrelevant and ceased to apply in Nigeria, having spent its purpose. Learned counsel emphasized his submission for its non-applicability by referring to the Revised Edition [Authorized Omissions] Order 1990 and the Revised Edition [Laws of the Federation of Nigeria] Act 1990 which omitted in Item 6 of Part II of Schedule 1 to the order, the Carriage by Air [Colonies Protectorates and Trust Territories] Order 1953.

Learned Counsel referred to S.3(2) of the Revised Edition [Laws of the Federation of Nigeria] Decree 1990 and said: –

“Where however, as in the instant case, an enactment is omitted on the ground that it is” no longer relevant to Nigeria S.3(2) of the Revised Edition (Etc.) Act 1990 cannot preserve its force Or validity beyond the moment its relevance ceased. The relevance of the Carriage by Air [Colonies Protectorates, and Trust Territories] Order, 1953, ceased with effect from Octoberl, 1960 when Nigeria relinquished its status as a colony, protectorate and trust territory.”

Learned counsel therefore urged this court to hold that the Order ceased to have any effect or validity in Nigeria as it was not saved or preserved by S. 274 of the 1979 Constitution, as an existing law.

On the Warsaw Convention, it was the submission of learned counsel that notwithstanding the declaration made by the government of Nigeria on attaining independence from the government of United Kingdom on Conventions and Treaties, because of the dual nature of treaty making in Nigeria, all that the declaration could have achieved was a declaration of intent.

He submitted that for the treaties and the conventions to have the effect and force of law in Nigeria legislative action was still required, and that there was no such legislative act similar to the executive declaration of 1960 to make the Warsaw Convention applicable in Nigeria. He forcefully contended that the Warsaw convention never applied to Nigeria in the first place and that all that applied was the Carriage by Air Act of the United Kingdom which applied by virtue of the 1953 Order-in-Council. It was also his contention that the fact that the Warsaw Convention is not included in a compilation of Treaties and international conventions in force in Nigeria by the Federal Ministry of Justice goes to strengthen his case that it is not applicable and therefore the appellant’s action was not statute-barred by Article 29(1) of the Convention. He cited and relied on the following cases to buttress his submissions; A-G, Canada v. A-G, Ontario (1937) AC 326; The Parliament Belge (1879) 4P.D. 129 and A.R.C. v. Abate Fantaye (1986) 3 NWLR (Pt. 32) 811 at 818. Learned Counsel summarised his arguments and submissions in his brief as follows:-

“(1) The Carriage by Air [Colonies, Protectorates, and Trust Territories] Order, 1953, was an imperial legislation enacted to implement the provisions of Carriage by Air Act of the United Kingdom and not the provisions of what is commonly referred to as the Warsaw Convention.

(2) The Carriage by Air [Colonies, Protectorates and Trust Territories] Order 1953 is obsolescent and in it’s absence there is no other statute in Nigeria to implement the provisions of the Warsaw

Convention.

(3) By virtue of the recognised duality between “treaty making” (as an executive function), and “treaty implementation” (as a legislative function), the Warsaw Convention never had force of law in Nigeria, notwithstanding that Nigeria, upon independence, declared itself bound by the obligations of the united kingdom for treaties extended to Nigeria.

(4) The Warsaw Convention was never extended to Nigeria. Rather it was the English Carriage by Air Act that was extended so that the declaration of 1960 would not apply in any event.

(5) The result is that the Warsaw Convention aforesaid, and particularly Article 29 thereof, cannot operate to affect the rights of the Appellant in the present case, and therefore cannot abridge the six year limitation period (provided under municipal law) within which the plaintiff can institute a claim for loss of goods.

(6) Finally, we submit that for the reasons stated above, the Court of Appeal was wrong to regard the 1953 Order as existing law within the meaning of section 274 of the Constitution.”

He urged the court to allow the appeal and hold that the case is not statute-barred and to remit the same to the High Court for determination on the merits.

In answer to submissions of learned counsel to the appellant, learned counsel for the respondent submitted that the Warsaw Convention which formed the First Schedule to the 1953 Order though a treaty on its own did not require any further Act of the Federal Legislature to make it applicable to Nigeria from 1st October, 1960. Learned counsel argued that it was clear from the First Schedule to the Order that the Convention shall have the force of law in Nigeria as extended to it by the Carriage by Air Act 1932. He referred to paragraph 7.2 at p.6 of the appellant’s brief where he said learned counsel for the appellant expressed the same view. He submitted that the 1953 Order was, by virtue of S.3(1) and (7) of the Nigeria Constitution Order-in-Council 1960 by which Nigeria became an independent state, made part of the existing laws.

He argued that both the 1963 and 1979 Constitutions contained similar saving provisions of the existing laws. Learned counsel contended that, whether viewed from the stand-point of the legislative history of the matter in the United Kingdom prior to 1st October 1960, or from the stand-point of the preservation in existence of the inherited legislation by Nigerian Legislative and constitutional process, the 1953 Order remains in force to this day and must be deemed to be an Act of the National Assembly made under Item 3 of the Exclusive legislative List contained in Cap 64 of the Revised Edition of the Laws of the Federation of Nigeria 1990.

He contended that the omission of the 1953 Order from the revised edition of the Laws of the Federation of Nigeria 1990, did not affect its enforcement and validity as an existing law since by virtue of S. 3(2) of the Revised Edition [Laws of the Federation] Act, 1990, the 1953 Order was saved.

It cannot also be implied to have been repealed. Learned counsel cited and relied on the following cases in support of his submissions – Osafile v. Odi No.1 3 NWLR (Pt. 137) 130 at 161; Ogunmade v. Fadayiro (1972) All NLR [New Edition] 670 at 678; Mobil Oil (Nigeria) Ltd. v. Federal Board of Inland Revenue (1977) 3 sc. 97; Toriola v. Williams (1982) 7 Sc. 27 at 47; Kanada v. Governor of Kaduna State (1986) 4NWLR (Pt. 35) 361 at 364; Governor of Kaduna State v. Kogoma (1982) 6 Sc. 87 at 106;:(1982) 3 NCLR 206; Raleigh Industries (Nig.) Ltd. v. Nwaiwu (1994) 4 NWLR (Pt. 341) 760 at 771 [CA]; Uwaifo v. A-G., Bendel State [1982] 7 SC.124at 191 and Olu of Warri v. Kperegbeyi (1994) 4NWLR (Pt.339) 416 .. In addition, learned counsel referred to the following books on interpretation of statutes: Craies on Statute Law [7th Edition] and Odgers’ Construction of Deeds and Statutes [5th Edition].

He also like learned counsel for the appellant, summarised his submissions as follows:-

“(1) The 1953 Order, as an Imperial Legislation, was in force in dependent Nigeria and formed part of the law of the country.

(2) The “Warsaw Convention” is set out in a Schedule to the 1953 Order and being part of the enactment, was itself an existing law within the meaning of that expression in section 3 of the 1960 Order.

(3) The 1953 Order was an existing law preserved in operation by section 3(1) of the 1960 Order and was transformed by the 1960 Order.

(4) The 1953 Order as transformed by the 1960 Order was in turn existing law under Section 274 of the Constitution of the Federal Republic, 1979, and has never been repealed by the competent Nigerian legislative authority.

(5) The omission of the 1953 Order, as transformed, from the Revised Edition (Laws of the Federation) 1990 does not derogate from the continued validity and effect of the Order.”

He urged this Court to dismiss the appeal for want of merit. Learned Counsel submitted that the 1953 Order was, by virtue of S. 1(3) and (7) of the Nigeria (Constitution) Order-in-Council, 1960 by which Nigeria became an independent sovereign state, made part of the existing laws. He argued that both the 1963 and 1979 Constitutions contained similar provisions to the 1960 Constitution which made the 1953 Order part of the existing laws.

There is no universal rule of state succession to treaties since the intention of High Contracting parties must always be taken into account. Historically, the former British Colonies had no international status and could not therefore enter into any treaty relations with foreign states. But by 1914 the dependent countries with dominion status i.e. Australia, Canada, New Zealand and South Africa, began concluding certain commercial and technical treaties when it became generally accepted that the British treaties did not automatically devolve on them. They could withdraw from certain commercial treaties. The practice gradually developed of consulting dependent territories in the negotiation of certain commercial and administrative treaties and of inserting colonial application clauses in treaties requiring local legislation by such dependent territories as a condition precedent to the application of such treaties by them. It then became the policy of the metropolitan government to secure by special agreement, the devolution upon its former territories of these rights and obligations arising from treaties and other international agreements contracted for or applied to them. A state could be deemed ipso facto a High contracting party on the ground of it formerly being part of a state that ratified or adhered to the treaty or convention.

By 1945, it has become the general policy of the imperial government to secure by special agreements with its former dependent territories, be the colonies or protectorates, the devolution upon them of these rights and obligations arising from treaties and other international agreements contracted for or applied to them. In the case of Nigeria, by exchange of letters between the United Kingdom and the government of Nigeria on October 1st, 1960, the Nigeria government confirmed and agreed that:-

1. All obligations and responsibilities of the government of the United Kingdom which arise from any valid international instrument are from October 1st 1960 assumed by the Government of the Federation of Nigeria in so far as such instruments may be held to have application to or in respect of the Federation of Nigeria.
2. The rights and benefit heretofore enjoyed by the Government of the United Kingdom by virtue of the application of any such international instrument to or in respect of the Federation of Nigeria are from October 1st, 1960, enjoyed by the Government of Nigeria.

The terms of other devolution agreements are broadly similar to the one supra and appear to have been accepted with equanimity by other independent African States of the Commonwealth, thus guarantying the continuity of such multilateral and bilateral agreements by these successor states. It is also worth noting that devotion or continued adherence is a form of state succession proper and retroactive from the date of independence of the dependent territory.

The narrow issue for determination in this appeal is whether the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953, is still an existing law by virtue of which the Warsaw Convention is still applicable to Nigeria and binding on the parties to the transaction in this case.

Learned counsel for the appellant conceded that the United Kingdom had power to legislate for Nigeria when the latter formed part of its dependent territories. Learned counsel said thus in his brief of argument:

“As the treaty practice of the United Kingdom of Great Britain and Northern Ireland was based on the duality doctrine, the Warsaw Convention signed on October 12, 1929, did not have legal force within the United Kingdom until Parliament passed legislation to implement it. This was done by virtue of the Carriage by Air Act, 1932 [22 and 23 Geo 5 Cap. 361, the long title of which reads: “An Act to give effect to a Convention for the Unification of Certain Rules Relating to International Carriage by Air…………….”

By this time, Nigeria then comprised a colony and protectorate under the authority of the United Kingdom of Great Britain and Northern Ireland……….. Accordingly the provisions of the Warsaw Convention did not have force of law within the colony and protectorate of Nigeria except through the mechanism of its former colonial master, the United Kingdom. The procedure adopted was to extend the provisions of Sections 1 and 2 of the Carriage by Air Act, 1932, to the colony and protectorate of Nigeria by use of an Imperial Order-in-council, viz the 1953 Order. See paragraph 2 of Preamble to the 1953 Order at Vol. xi Laws of the Federation 1958 page 618 and Sections 1 and 2 of the 1st Schedule thereto at p. 620].”

But his main contention is that from October, 1960 when Nigeria became a sovereign state, the 1953 Order ceased to have retroactive effect as there was no further legislation by Parliament to make it effective. He argued that as from October 1, 1960, if Nigeria was to succeed to the Warsaw Convention, it would do so in its capacity as a High Contracting Party. He added that he was supported in this view by the Revised Edition [Laws of the Federation of Nigeria] Act, 1990,

particularly S.3(1) of the Act; and that pursuant to the powers conferred upon the Attorney General of the Federation by the provision of sub-section (1) of Section 3 to the Act, the Attorney General promulgated the Revised Edition (Authorised Omissions) Order, 1990, by virtue of which the Carriage by Air [Colonies Protectorates and Trust Territories] Order 1953, was omitted on ground that it was no longer relevant. It was his further argument that S.3(2) of the Revised Edition (Etc.) Act, 1990 could not save the 1953 Order since it was omitted from the Schedule to the Revised Edition of the Laws on the ground that it is no longer relevant to Nigeria.

Dealing with this point and other arguments related to it, the learned President of the Court of Appeal admirably and exhaustively dealt with it in his lead judgment wherein he said:

“……….Once an enactment is extended to a Colony or Protectorate by an Order-in-Council, such as the 1953 Order, that enactment to all intents and purposes becomes not only part and parcel of the law of the Colony, but also self-executing and requires no further legislative act to implement its provisions. In other words, the extended enactment made by Order in Council enjoys the same legitimacy and effect as if passed by Parliament. In the circumstances, I hold the view that as at 1st October, 1960, when Nigeria became independent, the 1953 Order remained an “existing law”. It could only have ceased to be so, if it had been decreed out of existence by the Constitution of 1960 or repealed by the sovereign legislature. But that was not the case.

On the contrary, Section 3(1) of the Nigeria (Constitution) Order-in-Council 1960, protected and preserved existing laws as if they were made pursuant to the said Order. Furthermore, it must be noted in passing that section 18 of the Order -in-Council gave to the Parliament of the Federation of Nigeria the power to alter, with the consent of the Governors of the Region, any of its provisions or the 1st Schedule thereto. The first Schedule therein listed out the Orders in Council that have been revoked. The 1953 Order was not one of them.

The 1963 Constitution of the Federation, which repealed the Nigeria Independence Act 1960, and the Nigeria (Constitution) Order in council 1960, however, still provided for and preserved all existing laws, viz “a rule of law or a provision of an Act of Parliament, or of a law made by the Legislature of a Region, or of any other enactment or instrument whatsoever, in force immediately before the date of the Commencement of this Constitution ” Vide Section 156(1) of the 1963 Constitution [Italics supplied]

It has not been suggested that any of the Constitutions or an Act of the legislature or the Decrees of the Military has repealed the 1953 Order. If anything, Section 274 of the 1979 Constitution of the Federal Republic of Nigeria, like the ones before it, preserved and protected all existing laws. Section 274(4)(b) of the 1979 Constitution reads:-

“Existing law” means any law and includes any law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date”.

Earlier on in this judgment, I have tried to show that the mere omission of the 1953 Order from the Revised Edition of the Laws of the Federation does not amount to a repeal of that order or for that matter any omitted enactment. The omission authorised to be made, cannot be equated with a repealing clause in an Act. For if the two were to give rise to the same result and effect, it would, in my view, have been unnecessary to have clause 3(2) in the Revised Edition of the Act of 1990. Again as I did say before, I have not been shown any legislation expressly repealing the 1953 Order, and I am unable to imply any. I have already held that it is an existing law. So I agree with the respondent’s counsel that where a repeal is intended, it should expressly have been so stated.”

I entirely agree with this sound legal opinion expressed by Akanbi, the learned President of the Court of Appeal.

As I have said earlier in this judgment when reviewing the historical developments of the dependent territories to the succession of multilateral treaties extended to them by their colonial masters, particularly the African States, a state could be deemed ipso facto a High Contracting Party to a multilateral treaty extended to it by the legislation of its colonial master on the ground that it was formerly being part of the colonial master state which ratified or adhered to it in its capacity as a High Contracting party. In the case of Nigeria, this was achieved and concluded through exchange of letters between the United Kingdom and the Government of the Federation of Nigeria on October 1, 1960 wherein the two states agreed as follows:-

1. All obligations and responsibilities of the government of the United Kingdom which arise from valid international instrument are from October 1, 1960 assumed by the Government of the Federation of Nigeria in so far as such instruments may be held to have application to or in respect of the Federation of Nigeria.
2. The rights and benefits heretofore enjoyed by the Government of the United Kingdom in virtue of the application of any such international instrument to or in respect of the Federation of Nigeria are from October 1, 1960 enjoyed by the Government of Nigeria.

The Carriage by Air [Parties to the Convention] Order, 1958, No. 1252 of 1958 made on 30th July, 1958, made by extension, Nigeria a Party to the Warsaw Convention. See Part 1 of the Schedule to the Carriage by Air [Parties to Convention] Order No. 1252 of 1958 (which was printed as amended, by Carriage by Air) Parties to Convention Order-in-Council] 1958 (S.1958) 2190. Although S.2 of the 1960 Constitution described as the Nigeria (Constitution) Order-in-Council, 1960, repealed the Constitution of the Federation of Nigeria set out in the Second Schedule to this Order, subsection (1) to section 3 of the Order provided as follows:-

“The existing laws shall, notwithstanding the revocation of the Orders specified in the First Schedule to this Order have effect after the commencement of this Order as if they had been made in pursuance of this Order and shall be read and construed with such modifications adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Order.”

The provision of the sub-section (supra) read together with the devolution agreements between the United Kingdom and the Government of the Federation of Nigeria, saved and made the 1953 Order as an existing and applicable Law in Nigeria on October 1,1960. The 1963 Republican Constitution made similar saving provision in subsection 1of Section 156 under the subsection of “adaptation of existing law” as follows:-

“156( 1) All existing laws, that is to say, all laws which, whether being a rule of law or provision of an Act of Parliament or of a Law made by the legislature of a Region or of any other enactment or instrument whatsoever, is in force immediately before the date of the commencement of this Constitution or has been passed or made before that date and comes into force on or after that date, shall, until that law is altered by an authority having power to do so, have effect with such modifications [whether by way of addition, alteration or omission] as may be necessary to bring that law into conformity with this Constitution arid the Constitution of each Region.”

By 1979 Nigeria has a new Constitution providing for an Executive President at the Federal level. Subsection (1) of S. 274 of the Constitution of the Federal Republic of Nigeria, 1979 contains the following provision to save the existing law.

“274.(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with this Constitution and shall be deemed to be

(a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make and;

(b) a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.

The 1979 Constitution [now as amended] is the one that is still in force. So from 1960 to date, all the received English Laws, multilateral and bilateral agreements concluded and extended to Nigeria, unless expressly repealed or declared invalid by a court of law or tribunal established by law, remain in force subject to the provisions of S. 274(1) of the 1979 Constitution. The 1953 Order making the Warsaw Convention as part of the existing law still subsists, since it has neither

been repealed nor declared invalid. I entirely agree with the learned President of the Court of Appeal in his statement of the legal position to wit:-

“Clearly, the fact that Nigeria declared itself at independence to be bound by such Treaties, gives support to the contention that existing laws, until perhaps repealed by a legislative enactment, will remain in force even after independence. For there is no doubt that in making such a declared, it must be present to the mind of the declaration, that Nigeria has a compelling duty (and in its own interest) to observe all international treaties and obligations, extended to it by the British Crown, until it is able to make its own legislations in such matters. Certainly, it will be invidious and a dangerous thing to do, for any government at independence to declare that it will not be bound by international treaties extended to it by law.”

Although S. 3(1) of Revised Edition [Laws of the Federation of Nigeria] Act 1990 confers on the Attorney-General of the Federation power to specify by order, a schedule of enactments to be omitted from the Revised Edition of the Laws of the Federation of Nigeria, 1990, for reasons that such enactments are:-

(a) obsolescent; or

(b) of temporary nature; or

(c) under revision with a view to replacement; or

(d) of restricted or personal application;

subsection (2) of the same section went on to save such omitted enactments by providing that:

“3(2) Enactments omitted in accordance with subsection (1) of this Section, shall have the same force and validity as if they had not been omitted in the revised edition.”

Although the 1953 Order was included as item No.6 in Part II of the Schedule 1 to the revised editions of the Laws of the Federation of Nigeria as one of the Imperial Legislations described in the Revised Edition (Authorised Omission”) Order, 1990 as obsolete the S. 3(2) of the Revised Edition (Laws of the Federation of Nigeria) Act, 1990 and from which the Attorney General of the Federation derived his power of promulgating the order, has saved the 1953 Order from being irrelevant or obsolete.

I have not been able to find any legislation that repealed the 1953 Order or any court decision that has declared it illegal, irrelevant or obsolete. An important international convention like the Warsaw Convention cannot be said to be impliedly repealed when this country is still taking advantage of its provisions and has not promulgated similar enactment to replace it. The Convention is so important to this country both domestically and internationally to be avoided. A vacuum of such magnitude cannot be tolerated in our legal system. It is a notorious fact that all Air travelling tickets, whether domestic or international contain notices alluding to the provision of the Warsaw Convention being referred to in this case as the 1953 Order.

The 1953 Order can certainly be taken judicial notice of under section 74(1)(a) of the Evidence Act (Cap 112) Laws of the Federation of Nigeria, 1990.

Nigeria, like any other Commonwealth country, inherited the English common law rules governing the municipal application of international law . The practice of our courts on the subject matter is still in the process of being developed and the courts will continue to apply the rules of international law provided they are found to be not over-ridden by clear rules of our domestic law. Nigeria, as part of the international community, for the sake of political and economic stability, cannot afford to live in isolation. It shall continue to adhere to, respect and enforce both the multilateral and bilateral agreements where their provisions are not in conflict with our fundamental law.

The Issue raised and canvassed by the appellant having been resolved against him, the appeal fails and is hereby dismissed.

The decisions of the lower courts declaring the action filed by the appellant as being caught up by article 29(1) of the Carriage by Air [Colonies Protectorates and Territories] Order, 1953 to wit two – year limitation period from the date the cause of action arose as barring the appellant’s action is hereby affirmed with N1,000.00 cost to the respondent.

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Other Citation: (1997) LCN/2776(SC)