Uta French Airlines V. Mrs. Marie Fatayi-williams (2000)

LawGlobal-Hub Lead Judgment Report

SANUSI, J.C.A.

On 27th February, 1992 the respondent as plaintiff at the lower Court instituted suit No.LD/592/92 before the Lagos High Court claiming damages of N52, 785.00 (Fifty two thousand seven hundred and eighty five Naira) from the defendant who is the appellant in this appeal for the latter’s wilful misconduct for losing her luggage and its content in flight No.UT 861 which she boarded from Charles de Gaulle Airport to Murtala Mohammed Airport Lagos on 2/3/90.

The Lagos State High Court (Coram Akinsanya J.) on 6th December, 1992 ruled that it no longer had jurisdiction to entertain such matter by virtue of the provisions of Federal High Court (Amendment) Decree No. 60 of 1991. The learned trial Judge remitted the said suit to the Lagos State Chief Judge for further directives. The Honourable Chief Judge in his opinion felt that the matter should not be transferred to the Federal High Court which then had jurisdiction to adjudicate in the matter, caused a letter to be written to the respondent to the effect that the matter could not be transferred by him to the Federal High Court but instead that the respondent could instituted fresh action in the Federal High Court if she so wished.

It should be noted that the respondent did not appeal against the Lagos High Court’s ruling declining jurisdiction and transferring the suit No. LD/592/92 to the Hon. Chief Judge for further directives.

In compliance with the advice of the Lagos State Hon. Chief Judge, the respondent by virtue of writ of summons dated 7th April 1993 instituted suit No.FHC/L/CS/100/93 at the Federal High Court claiming damages of $5,100.00 (Five thousand, one hundred US Dollars) or its Naira equivalent from the defendant/appellant for the defendant’s wilful misconduct of losing her luggage and its content. She also claimed interest. Pleadings were ordered and exchanged and issues were joined.

Before hearing commenced, the appellant filed a motion on notice dated 8th October 1993 seeking an order dismissing the respondent suit No.FHC/L/CS/100/93 on the ground that her claim was statute-barred by virtue of the provisions of Article 29 of the Carriage by Air (Colonies Protectorates and Trust Territories) Order 1953 as the said suit was not brought within two years from the time the cause of action arose i.e. 2/3/1990. After duly considering the submissions of counsel for the parties, the learned trial Judge held that the action was not statute barred and dismissed the application. The learned trial Judge further held that the suit No. LD/592/92 was still in existence and ordered that the said suit before the Lagos State High Court should be forwarded to his court for adjudication. The appellant became dissatisfied with the lower court’s ruling and thus appealed to this court. It filed five grounds of appeal out of which it identified and formulated two issues for determination in this appeal.

The issues for determination formulated by the appellant’s counsel are as follows:-

(a) Whether having regard to pleadings in this case, the learned trial Judge was right in holding that the respondent’s claim was not statute-barred?;

(b) Was the learned trial Judge right in ordering that suit No. LD/592/92 be forwarded to the Federal High Court for adjudication when there was neither an application for such an order nor statutory justification for same?

The respondent did not file any brief of argument as such this appeal will be considered on the appellant’s brief of argument only. In doing so, I shall adopt the issues formulated by the appellant and deal with them seriatim.

The learned Counsel for the appellant submitted on the 1st issue for determination that the issue of whether an action is statute-barred or not touches on the jurisdiction of a court. He cited the case of Ajayi v. Military Administrator Ondo State (1997) 5 NWLR (Pt. 504) 237 at 254. It is also submitted that in determining whether an action is statute-barred a court ought to refer to the pleadings to determine when the cause of action arose since the statute of limitation begins to run from the time the cause of action arose. See Egboigbe v. NNPC ( 1994) 5 NWLR (Pt. 347) 649 at 663. He further submitted that the cause of action arose on 2/3/90 when the flight landed without the appellant’s luggage and that was the date from which the time will start running through to the date the suit was filed which in this instant case was 7th April 1993. He further submitted that by virtue of the provisions of Article 29 of the Carriage by Air (Colonies Protectorates and Trust Territories) Order of 1953 right to damages shall be extinguished if an action is not brought within two years reckoned from the date of arrival at the destination or from the date on which the Aircraft ought to have arrived or from the date on which the carriage stopped. He said having rightly determined these two important dates the learned trial Judge ought to have found that two years have elapsed and should have dismissed the action as urged. See Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (pt. 498) 124 at 161 (a-c).

With regard to the lower court’s finding that since the respondent filed her action at the Lagos High Court on 27/2/92 which was within time and that the action (LD/L/592/92) was not struck out then the suit No. FHC/L/CS/100/93 which was reconstituted could not be said to be statute-barred, the learned appellant’s Counsel argued that the Lagos High Court could not have continued with suit No.LD/L/592/92 filed before it on 27/2/92 because Decree No. 60 of 1992 whose commencement date was uncertain, ousted the jurisdiction of Lagos High Court. Also the learned appellant’s counsel submitted that the suit filed before the Federal High Court i.e. suit No. FHC/L/CS/100/93 was reinstitution of the suit earlier filed before the Lagos State High Court (suit No. LD/592/92) since the latter suit was not struck out and also was not statute-barred.

It was also submitted on behalf of the appellant that, prior to 30th December, 1991 State High Court had jurisdiction over claims arising from the carriage of passengers and goods in line with the unlimited jurisdiction given to it by the 1979 Constitution. But by the advent of the Federal High Court (Amendment) Decree No. 60 of 1991, jurisdiction on aviation safety of Aircraft and carriage of passengers and goods by air meteorology was vested exclusively on Federal High Court. The commencement date of that Decree i.e. Decree No. 60 of 1992 was 30/12/91 but later section 1 (b) of Decree No. 16 of 1992 i.e. Federal High Court (Amendment) Decree of 1992 repealed Section 4 of Decree No. 60 of 1991. Another provision of Decree No. 16 of 1992 whose commencement date was 1/1/92 that is to say Section 4 of this Decree (of 1992) has substituted Section 4 of the old Decree No. 60 of 1991. Therefore, Decree No. 60 operated for two days only i.e. From 30th December to 31st December, of 1991. Thus as from 11 January 1992, Decree No 60 had no commencement date until the President of Nigeria by order published in gazette specified it. Going by this analysis the learned appellant’s Counsel submitted that as at 27th February 1992 when the suit No. LD/592/92 was instituted at the Lagos High Court, that court had jurisdiction to try the action until the time when the President fixed the commencement date for Decree No. 60 of 1991. The Lagos High Court was therefore wrong in declining jurisdiction over the matter. He said it should have assumed jurisdiction as at 6/12/92 and the respondent instead of reinstituting fresh action in the Federal High Court should have appealed against the Lagos State High Court’s ruling declining jurisdiction. That she failed to do. It is further argued that Lagos High Court’s jurisdiction over the matter remained intact until 26/8/1993 when statutory instrument No.9 known as Federal High Court (Amendment) Decree of 1991 as amended whose commencement date was 26/8/1993 was decreed. He concluded his argument on this by submitting that the trial Lagos State High Court Judge had jurisdiction to entertain the matter up to and until 26/8/93 and also it was wrong for learned trial Federal High Court Judge to hold that there was uncertainty on the commencement date of Decree No. 60 of 1992. He emphasised that there was no uncertainty of the commencement date of Decree No. 60 of 1991 as held in the case of Egypt Air v. Abdullahi (1997) 11 NWLR (Pt. 528) 179 at 188, see also Sudan Airways v. Abdullahi (1998) 1 NWLR (pt. 532) 156 at 163.

It is apt to say at this stage that an action is said to be statute-barred if it was brought after the period within which the plaintiff brought it has elapsed.

It is trite law that time will start running right from the date the contract agreement became concluded. See Nwadiaro v. Shell Development Co. (1990) 5 NWLR (Pt. 150) 322; Egbe v. Adefarasin (1985) 1 NWLR (Pt. 3) 549.

In determining the actual time when the cause of action arose it is necessary to consider the pleadings since statute of limitation will begin to run from the date the cause of action arises. See Egboigbe v. NNPC (supra) 663. From the statement of claim filed by the plaintiff, it is clear that she arrived at the Murtala Mohammed Airport on 2nd March, 1990 and on that day her luggage was not delivered to her by the appellant. The learned trial Judge was right in my view, when he held that time starts running on that day i.e. 2/3/90. Now when was the suit appealed against filed? From the record provided in the writ of summons and particulars of the claim filed before the lower court, suit No. FGC/L/CS/100/93 was filed on 7th April, 1993. The suit which subject matter relates to carriage of goods by air is no doubt governed by provisions of Carriage by Air (Colonies Protectorate and Trust Territories) Order of 1953 as mentioned in the particulars of Claims Exhibits BB2 and BB3 the statement of defence. Article 29 of the Carriage By Air Order of 1953 provides as follows:-

“The right to damages shall be extinguished if an action is not brought within two years reckoned from the date on which the Aircraft ought to have arrived or from the date of arrival at the destination or on the date on which the carriage stopped.”

In interpreting the provision of Article 29(1) of the 1993 Order the Supreme Court had this to say in the case of Ibidapo v. Lufthansa Airlines (supra) at page 161 para. A-C.

“It is not in dispute that plaintiff arrived Frankfurt on 17th January, 1987. If he had any claim against the defendant he must bring his action within two years from that date. See Article 29(1) of the Warsaw convention, which provides … See also Oshevire v. British Caledonian Airways Ltd (1990) 7 NWLR (Pt. 163) at 512 and 521. As plaintiff did not commence his action until 21st of March 1989, well outside the two years period laid down in Article 29(1), the two courts below are right in holding that the plaintiff’s action is barred by the said Article.”

As I said above, the lower court rightly held that the cause of action arose right from 2nd March 1990. Also the writ of summons in the suit appealed against was filed on 7th April 1993. The suit was therefore not filed within the two years period allowed by Article 29(1). The plaintiff/respondent was therefore definitely caught up by the provisions of Article 29(1) and the action is therefore statute barred.

I am not unmindful of the fact that the respondent had earlier filed a suit before the Lagos High Court in which the learned trial Judge of the Lagos State High Court declined jurisdiction and remitted same to his Chief Judge for transfer to the Federal High Court. The learned Chief Judge in turn did not transfer the suit i.e. LD/592/92 to the Federal High Court but instead ordered that the plaintiff be advised to file fresh action at the Federal High Court which she subsequently did. Ideally, what the plaintiff/respondent should have done was to appeal against the ruling of the Lagos State High Court declining jurisdiction. Be that as it may, one thing that is not in dispute is that the suit filed before the Federal High Court was freshly filed on 7th April 1993 and was not on transfer to it from the High Court of Lagos State. There is therefore no how the two suits can be regarded as one and same suit or for two suits to be alive in two different courts as decided by the learned trial Judge. I do not regard as useful the arguments of learned Counsel on the issues of jurisdiction of the High Court or Federal High Court vis-a-vis the provision of Decree No. 60 of 1991 and Decree No. 16 of 1992. I discountenance all these arguments in the brief related thereto as they are irrelevant having held that this suit appealed against was freshly filed before the Federal High Court on 7/4/93 and is completely distinct from suit No. LD.592/92 filed earlier at the Lagos High Court and that the suit now appealed against was filed outside the period stipulated by law. It is trite law that in determining whether an action is statute-barred, time starts to run as the rule continues to do so, even though subsequent event occurs which makes it impossible that an action should be brought. This rule holds good in respect of all Limitation Acts. See Halsbury Laws of England (4th Edition para. D, 628.)

Similarly, in the case of Oshevire v. British Caledonian Airways Ltd. (supra) the position in the common law was restated thus at page 522 (B-C):-

“The limitation period laid down in Article 29(1) cannot be suspended or interrupted, even by agreement of the parties. In the same Uniform Law Review Bi-annual (1986) Vol. II p. 583 at 584, the Commercial Tribunal of Luxemburg on 20/12/85 in the case of Ste Imo v. Ste Cargoluxq held that the limitation period laid down in Article 29(1) is of a predetermined nature and cannot be suspended or interrupted.”

See also UAC Ltd v. Global Transport S.A. (1996) 5 NWLR (Pt. 448) 291 at 300; T. J. Solomon v. African Steamship Co. Ltd 9 NLR 99 at 101, Prideaux Weffer 83 ER 282.

In the light of the aforesaid and the decided authorities cited above, I hold that the decision is statute barred. The learned trial Judge was wrong in holding that the respondent’s action was not statute barred.

The second issue for determination is whether the learned trial Judge was right in ordering that suit No. LD/592/92 be forwarded to Federal High Court for adjudication?. To answer this question, it is pertinent to refer to the application filed before the lower Court and see the reliefs sought. The prayers contained in the application read as follows:-

“(1) Setting down this matter to be decided on the preliminary point of law raised in paragraphs 10 and 11 of the statement of defence dated 28th May 1993.

(2) Dismissing the plaintiff’s suit herein.”

Purporting to have acted under the provisions of Order 47 rule 2 of the Federal High Court Civil Procedure Rules the learned trial Judge ordered thus:-

I order (sic) that suit No.LD/592/92 instituted on 27th February, 1993 by Mrs. Marie Fatayi Williams against UTC French Airways now pending in the registry of Lagos High Court be forwarded to the Federal High Court for adjudication on merit.”

It is clear that the applicant had never asked for the relief granted by the trial Judge in his application. It is trite that courts are not charitable organisation and as such will not grant an order not asked for. See Ekpenyong v. Nyong (1975) 2 SC 71; Ademola v. Sodipo (1992) 7 NWLR (pt. 253) 251 Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 at 369.

Although the learned trial Judge purportedly made the order pursuant to Order 47 Rule 2 of the Rules of that court, but under section 7(6) (b) of the Federal High Court law, it is only a judge seized of the matter at the State High Court who can transfer affected cases to the Federal High Court and not the other way round. See also Section 22(3) of the same law. There is no gainsaying that provision of a statute overrides the provision of rules of court which always derive their authority and force from the substantive statute. In other words, provisions of statutes always have overriding effect over Rules of court and are therefore superior in force. See Nwanezie v. Idris (1993) 3 NWLR (Pt. 29) 1 at 16 (B-C).

In conclusion, I hold that the learned trial Judge is in error in holding that the action is not statute-barred in view of the fact that the said action was filed after the two years period stipulated by law. The action is really statute-barred. Similarly, the learned trial Judge has no power to order the transfer of suit No. LD/592/93 to his court for adjudication. The appeal is therefore meritorious. It therefore succeed and is accordingly allowed. I assess cost at N2,000 against the respondent.

Other Citations: (2000)LCN/0737(CA)