By Idowu J. Lawrence Esq[1]
Preamble
On January 1, 1914, Tony Jannus flew a Benoist XIV biplane flying-boat of the St. Petersburg-Tampa Airboat Line from St. Petersburg to Tampa in 23 minutes with a paying passenger. This was the first scheduled commercial airplane flight[2]. This was 11 years after the wright brothers had successfully introduced and tested the new flying object[3] for transportation called the airplane. The first flight in Nigeria was recorded 11 years after Jannus flew the first recorded flight, and it was operated by the British Royal Air Force in 1925. After over two decades of its introduction as alternative transportation, people had now begun to accept air travel as a viable alternative to railway, water and road travel. Of course, air transport came with its own risk and issues including plane crashes, protection of passenger properties and ancillary issues.
As a proactive step to manage the issues relating to air travel, some European nations agreed to a proposal for a unified convention to govern air travels. It was named after a city in Poland called Warsaw, which hosted the conference where the treaty draft was presented. The convention was introduced in Nigeria as a British Colony through the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953 and was acknowledged as part of the Received English Laws by the Nigerian Supreme Court in its 1998 decision in Ibidapo v Lufthansa[4]. The Convention was enforceable in the Nigerian High Courts until 1991 when a new law was made which vests exclusive jurisdiction on Aviation matters in the Federal High Court[5]. The lawmakers anticipated some ongoing cases might be affected by this innovation and proactively provided that such cases were to be transferred to the Federal High Court as a new case to be heard de novo[6]. But in doing this, the law did not expressly define what amounts to Aviation dispute or when such may be considered to have arisen. The application was made to anything Aviation related[7]. In any case, while the Warsaw Convention defined rights and liabilities, the Nigerian law defined which court should determine the dispute.
The tenor and climax of the Warsaw Convention
On the 24th of January 1995, Mr. Keazor, a Nigerian Lawyer, was to travel from Kaduna to Lagos, He booked and boarded Harka Air Services Limited on its flight No.TU134 from Kaduna to Lagos. There was bad weather at the point of embarkation. Because of the weather, most of Harka Air’s competitors cancelled their flights. But the pilot of Harka Air was a brave and experienced pilot who would not be perturbed by an ordinary bad weather. In fact, as at the time the pilot was bent on taking off, no other flight took off. And because the force of nature must complete its cycle without regard for a daring pilot, the flight to Lagos was turbulent and the descent in Lagos was irregular, as the aircraft finally crash-landed.
This was followed by a smoke and fire outbreak in the cabin, which caused panic and confusion as passengers scampered for safety. While the pilot perhaps had an adventurous flight, Mr. Keazor and other passengers had a traumatic experience, coupled with sustaining injuries and body pain. The serious nature of the injuries required medical attention. He suffered loss professionally and financially as the injuries curtailed his day-to-day activities. Mr. Keazor also lost his hand luggage and personal effects.
Consequently, Mr. Keazor sued the Airline for Willful Misconduct in the same 1995. He argued that the Pilot was an agent of the Airline, and the Airline was therefore responsible for the actions of the pilot which has caused him psychological, physical, financial and professional loss. He based his claims on the Warsaw Convention, which provides that while there is a general limit for damages which a court could award in Aviation cases, an Airline which is adjudged to be guilty of willful misconduct may suffer damages at large. This means the court could award a higher sum than the stipulations of the Convention.
The High Court agreed with him, and awarded the sum of awarded N1,257,840.00 (one million, two hundred and fifty-seven thousand, eight hundred and forty Naira) as special and general damages as well as costs of the action, having held that the airline was guilty of misconduct. The Airline appealed. The court of appeal allowed the appeal in part but only on the currency for damages which the court held should be in dollars. The Airline again appealed to the Supreme Court. When the Apex Court determined the appeal in 2011, the court not only dismissed it, but further explained that by virtue of the Warsaw Convention which has been domesticated in Nigeria, an Airline could be held liable on these grounds[8]:
(a)injury sustained on board an aircraft; or
(b)death arising from the course of a journey; or
(c)damage to or loss of goods; or
(d)delayed or denied boarding; or
(e)interactions in the course of preparing for or the actual conduct of flight operations.
The court also defined what is considered an Aircraft Accident to mean an “occurrence associated with the operation of an aircraft, which takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked, in which a person suffers a fatal or serious injury as a result of being in the aircraft[9].”
There had been many court decisions on passengers’ rights and airlines’ responsibilities including the lucid case of Cameroon Airlines v Otutuizu[10] in which the airline was sanctioned for transporting the passenger to a different destination where the passenger was harassed and jailed for lack of documentation. However, the decision in Harka v Keazor occupies a place of pride in Nigeria’s jurisprudence as it climaxed the reign of the Warsaw Convention. Although the facts before the court in Harka v Keazor bordered on the conduct of a pilot which is clearly an Aviation dispute, the court went further, through its interpretation of the Warsaw Convention, to suggest that all and sundry cases involving airlines could be ventilated at the Federal High Court. A legacy that introduced turbulence into aviation disputes resolution.
The Advent of the Montreal Convention
It appears that the Supreme Court had correctly set the standard of liability and responsibility regarding the relationship between the Airlines and their Passengers. However, by virtue of the Civil Aviation Act 2006[11], the Nigerian Legislature domesticated Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Montreal on 28th May 1999, also known as the Montreal Convention. The Montreal Convention became the new sheriff in town for Aviation Matters in nations that are signatories to the convention and have domesticated it. By its provisions, it asserts domination over other existing legislations on Aviation Matters.
The Civil Aviation Act 2006 also repeals the Warsaw Convention[12], which makes it no longer applicable in Nigeria. By implication, the Warsaw convention was no longer applicable to matters arising after the repeal. The natural effect is that pronouncements of the court in cases that were based on the Warsaw Convention should no longer be applicable to new cases founded on the Montreal Convention, unless the facts, context and provisions were similar. However, the unfolding events revealed that this development was lost on litigants, their counsel, and some courts, as many subsequent decisions[13] remained reliant on the decision in Harka v Keazor[14]wholesale, notwithstanding the cause of action arising after the repeal of the Warsaw Convention, without any indication as to whether the facts were similar.
The Embarkation Benchmark in Aviation Disputes
In addition to the fact that the Civil Act 2006[15] vests jurisdiction in the Federal High Court on matters arising from Aviation disputes, the Federal High Court Act also provides similarly[16]. Importantly, the Nigerian Constitution stipulates explicitly that all matters bordering on “Aviation and Safety of Aircrafts[17]” are to be adjudicated in the Federal High Court. Accordingly, all issues concerning aircrafts, including transportation on, or sale of aircrafts and supply its part[18], are ventilated at the Federal High Court. In simpler terms, the subject matter must touch on the aircraft for jurisdiction to vest in the Federal High Court. Meanwhile, there seems to be a kerfuffle on what is termed as “Aviation dispute” for which the Federal High Court is to exert jurisdiction.
In 2007, Mr. Jawad Taher who had purchased a KLM Royal Dutch Airlines ticket from Kano to Canada and then the United States, was stopped before boarding. He was accused of forging his passport. This took place after he had been fully screened and cleared and given the luggage tag for his luggage as well as a boarding pass. Consequently, the airline refused to transport Mr. Taher. As a result, he wrote and obtained a written confirmation from the Government of Canada confirming his Canadian citizenship. Being aggrieved that he had been unfairly treated, he sued the Airline and the official who had mistreated him at the Federal High Court, Kano division.
When hearing commenced, the Airline and the official filed an objection challenging the jurisdiction of the Federal High Court to entertain Mr. Tawad’s claim for assault, false imprisonment and defamation, which were not an Aviation dispute. After hearing the parties, the trial court overruled objection and assumed jurisdiction pursuant to section 251(1) of the 1999 Constitution, stating that Mr. Taher’s main claim was an aviation matter and holding that it could hear the principal claims as well as the ancillary claim. Dissatisfied, the Airline and the official appealed. At the Court of Appeal[19], the court examined the facts of the case and concluded that:
“The harm was not connected with the aircraft itself, so embarkation had not started, the carriage by aircraft had not begun, therefore, it is completely outside the parameter of carriage by air. Even though the contract has been entered into, the execution of the same had not begun. At that stage it was a simple contract between the parties.[20]”
Succintly, the Court of Appeal introduced what could be referred to as the “Embarkation Test”. To avoid ambiguity, the court explained that “In the Nigerian Context, the word ‘embarkation’ does not include any period when a passenger still has to go through a check or control which could result in refusal of entry. It means the boarding of an aircraft for the purpose of commencing a flight[21]” The Court of Appeal therefore upheld the Airline’s appeal and struck out Mr. Taher’s case, leaving him the option of filing a fresh case at the State High Court for an action to enforce the simple contract at the State High Court.
The legal turbulence
The decision in KLM v Taher became a watershed point in the Aviation jurisprudence in Nigeria, having clearly set the embarkation test as a benchmark for assumption of jurisdiction by the Federal High Court. In line with the principle of Stare Decisis/Precedents, the Court of Appeal itself and the lower courts were to be guided by it, until it is overturned by the Supreme Court. It stipulates that all issues involving an airline and the passenger could only be resolved at the Federal High Court when there is an embarkation or contact with the aircraft.
Unfortunately, in July 5, 2017, a panel of the Court of Appeal sitting in Lagos ignored this decision when it upheld the appeal of Francesca Majasan who had sued Air France at the Lagos State High Court for failing to carry her to her vacation destination in France. In that Appeal, while the High Court correctly applied the law that it had jurisdiction on the simple contract whereupon there was no embarkation, the Court of Appeal overturned the High Court’s decision, and held she ought to have filed to refund of ticket cost at the Federal High Court. The Court of Appeal, after holding the case should have been filed at the Federal High Court, also relied on previous cases decided based on the Warsaw Convention and in which there was embarkation[22], without considering the latest decision in KLM v Taher. Manifestly, the court was misled by this approach.
Exactly, a week after the Appeal in the Majasan case was upheld on July 12 2017, another panel of the Lagos division of the Court of Appeal in KLM v Idehen[23] considered jurisdiction of the lower court on a return ticket in which a leg had already been used but the passenger was denied boarding in the return leg. The court applied the reasoning in the Taher decision to hold that since there was already embarkation on the same ticket, the jurisdiction of the Federal High Court had been activated.
The Idehen decision appeared consistent with the decision in KLM v Taher and the embarkation test. And given that the later decision of the court is interpreted to have overruled the previous ones[24], the embarkation test in KLM v Taher could be said to have been restored. Furthermore, the Court of Appeal re-affirmed the embarkation test in the 2019 decision of Delta Airlines v Josef[25] in explaining that whether a ticket is one-leg or return ticket, the jurisdiction of the Federal High Court to redress any disputes arises when embarkation occurs.
Unfortunately, when the appeal involving Azman Airline and Mr Anikoh who had been denied boarding was heard at the Court of Appeal in 2021, the Court of Appeal reverted to the position in Air France v Majasan. This is notwithstanding having the benefit of the cases of KLM v Taher and Delta Airlines v Josef cited to it by counsel. In arriving at its decision that it was the Federal High Court that has jurisdiction on refund of ticket and not the High Court of the Federal Capital Territory, the Court of Appeal relied on the decision of the Supreme Court in Harka v Keazor, which was based on the repealed Warsaw Convention. The Court also incorrectly held that both the Warsaw Convention and the Montreal Convention were the operational treaties[26]. The Warsaw Convention could not give life to anything, having been repealed, and particularly replaced with the Montreal Convention as domesticated by the Civil Aviation Act 2006, and the new Civil Aviation Act 2022.
Clarity in the law
Happily, an opportunity presented itself for this author to assist the court on some of the noted conflicts. In the Court of Appeal decision in Vipani v Air France[27] delivered on 18th July 2025, the Court of Appeal agreed with the author of this article that the Warsaw Convention, having been repealed, has no legal life and could not sustain any action in law.
Additionally, while the Court of Appeal restated the embarkation test in determining jurisdiction of the Federal High Court in the Olaoye v Kenya Airlines appeal in 2024[28], the imprimatur of the Supreme Court did not come until the case of Maevis Ltd. v. SITA in 2025[29]. While the parties in the case were involved in a simple contract of construction and not a contract of carriage simpliciter, the Supreme Court took the opportunity to explain that:
“A matter that does not affect the operational safety or a core aviation issue concerning the operation of an aircraft or matter arising therefrom or appertaining thereto but which merely is about a simple tort and a resultant claim for damages arising thereunder is not a matter that falls within the ambit and scope of section 251 (1)(k) of the Constitution of the Federal Republic of Nigeria,1999 (as amended) and or section 7 (1)(k) of the Federal High Court Act.[30]”
This pronouncement was of great assistance to the Court of Appeal when it delivered its judgment in December 2025, in the Appeal matter of Air Peace v Opara[31] in which the airline appealed against the decision of the High Court of the Federal Capital Territory. At the lower court, the High Court held that it had jurisdiction on a claim for refund of ticket, which is a simple contract. The Court of Appeal, in split decision of two to one, affirmed that with the blessing of the Supreme Court in the case of Maevis v Sita, without embarkation, agreement between parties could only amount to a simple contract which is within the jurisdiction of the State High Court. Interestingly, while the legal exposition made on the Warsaw Convention had been overtaken by the advent of the Montreal Convention, the aircraft accident definition made in Harka v Keazor[32] remains good law to the extent that it aligns with the embarkation test, which is the mainstream approach in Aviation dispute resolution.
Best Practices in related technical fields
Before concluding, it is important to state that the jurisdictional approach in resolution of disputes in related technical fields aligns with the “embarkation test”. In areas of practice covered by the Section 251(k) of the Constitution including Admiralty[33], Oil and Gas[34], Mining[35], the issue is well settled on the point that unless a contract within the section is performed or the execution had commenced, the Federal High Court’s jurisdiction had not been activated. Similarly in Insurance practice,[36] the jurisdiction of the Federal High Court is not activated until there is performance of the contract. Any dispute prior to performance is treated as a issues on a simple contract which is adjudicated upon by the State High Court. The embarkation test therefore aligns with judicial consistency in similar fields.
Conclusion
Clarity in the process and procedures of dispute resolution is an important factor for industrial and economic success. Where parties and practitioners are unsure of smooth navigation in the process of dispute resolution in a particular field including Aviation, such field may experience drought or suffer retrogression and may fail to contribute meaningfully to national economic growth. It is on this premise that the embarkation test is therefore reasonable and of great assistance to the courts in adjudicating Aviation Disputes, particularly between passengers and airlines.
[1]Idowu J. Lawrence Esq. is an experienced Commercial Litigation Lawyer practicing primarily in Lagos State. A
researcher and member of the Nigeria Bar Association Adjudicature Review Committee where he renders periodic commentaries of court decisions for the benefits of Judges, Legal Practitioners and the Society. He can be reached via [email protected]
[2] https://www.iata.org/en/about/history/force-for-good/flying-100-years/ accessed 16th June 2026
[3] https://www.nasa.gov/history/120-years-ago-the-first-powered-flight-at-kitty-hawk/ accessed June 16, 2026
[4] Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (Pt. 498) 124
[5] Federal High Court (Amendment) Decree No. 60 of 1991
[6] Egypt Air v. Abdullahi (1997) 11 NWLR (Pt. 528) 179
[7] The first casualty of the new law was the case of Egypt Air v Abdullahi where there was no execution of the air freight, but the Court of Appeal applied a wide interpretation in holding that Aviation was implied and it ought to be adjudicated by the Federal High Court and thus made an order of transfer.
[8] Harka Air Serv. Nig. Ltd. v. Keazor (2011) 13 NWLR (Pt. 1264) (P. 343, paras. F-G)
[9] Harka v Keazor (Supra) (P. 343, paras. D-E)
[10] Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512
[11] Section 48 Civil Aviation Act 2006
[12] Section 77 (1) of the Civil Aviation Act 2006 repeals the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953 (along with its non-international counterpart), which extended the 1929 Warsaw Convention to British Overseas Territories, including Nigeria.
[13] Mekwunye v. Emirates Airlines (2019) 9 NWLR (Pt. 1677) 191, Emirates Airline v. Ngonadi (No. 1) (2014) 9 NWLR (Pt. 1413) 429, AIR FRANCE v. MAJASAN (2017) LPELR-43500(CA), AZMAN AIR SERVICES LTD v. ANIKOH (2021) LPELR-56690(CA)
[14] Harka v Keazor Supra
[15] Section 63 Civil Act 2006
[16] Section 7 Federal High Court Act.
[17] Section 251(k) of the 1999 Constitution
[18] SOSOLISO AIRLINES & ORS v. STARBURST AVIATION (UK) LTD & ORS (2022) LPELR-58743(CA), SKYJET AVIATION SERVICES LTD & ANOR v. COMPUWORLD LTD (2024) LPELR-80392(CA)
[19] KLM Royal Dutch Airlines v. Taher (2014) 3 NWLR (Pt. 1393) 137
[20] KLM v Taher (Supra) Per ORJI-ABADUA, J.C.A. at pages 193-194,paras. H-C
[21] KLM v Taher (Supra) Page191, Paragraph A
[22] Like Harka v Keazor (Supra), there was embarkation in the cases of Sudan Airways Co. Ltd v. Abdullahi (1998) 1 NWLR (Pt. 534) 156 at 163, Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512, Cameroon Airlines v. Miss Jumai Abdulkareem (2003) 11 NWLR (Pt. 830) 1 at 5, which the court erroneously relied upon and carriage by air was already activated to qualify for aviation dispute.
[23] KLM ROYAL DUTCH AIRLINES v. IDEHEN (2017) LPELR-43575(CA)
[24] OGHENEGUEKE & ORS v. IGP & ORS (2023) LPELR-60233(CA)
[25] DELTA AIRLINES v. JOSEF & ANOR (2019) LPELR-46921(CA)
[26] AZMAN AIR SERVICES LTD v. ANIKOH (2021) LPELR-56690(CA) Per STEPHEN JONAH ADAH, JCA (Pp 17 – 17 Paras A – F)
[27] (CA/LAG/CV/5842021) unreported.
[28] Per JANE ESIENANWAN INYANG, JCA (Pp 27 – 29 Paras C – A) in OLAOYE v. KENYA AIRWAYS (2024) LPELR-61846(CA)
[29] Maevis Ltd. v. SITA (2025) 15 NWLR (Pt. 2007)
[30] Maevis v Sita (Supra) (Pp. 102-103, paras. H-A; 103, paras. E-H)
[31] AIRPEACE (NIG) LTD v. OPARA (2025) LPELR-81908(CA)
[32] Aircraft Accident was defined in Harka v Keazor (Supra(P. 343, paras. D-E)to mean an “occurrence associated with the operation of an aircraft, which takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked, in which a person suffers a fatal or serious injury as a result of being in the aircraft
[33] Glenyork (Nig.) Ltd. v. Panalpina W.T. (Nig.) Ltd. (2025) 8 NWLR (Pt. 1992) 363
[34] Statoil (Nig.) Ltd. v. Inducon (Nig.) Ltd. (2021) 1 NWLR (Pt. 1774) (Pp. 50-51, paras C-B; 76 paras C-D)
[35] Brittania-U (Nig.) Ltd. v. Chevron (Nig.) Ltd. (2025) 3 NWLR (Pt. 1979) (Pp. 256, paras. B-D; 276, paras. B-
D)
[36] ALLIANCE & GENERAL INSURANCE PLC v. ATTAINYANG & ANOR (2024) LPELR-62105(CA)
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