HOW AN AIRLINE WHICH FLEW A NIGERIAN DEPORTEE FROM ABROAD ESCAPED $100M CLAIMS IN A FUNDAMENTAL RIGHTS SUIT

Sometime ago, one Mr. Adesina filed a fundamental rights suit against Air France claiming that his fundamental rights to dignity of the human person, personal liberty and fair hearing was breached. He claimed $100 Million in damages.

The gist of the case was that Mr. Adesina was deported by the French Immigration Service. Mr. Adesina’s story was that on 17 June 2007, he was forced by the French Immigration officers into an aircraft belonging to Air France and deported to Nigeria against his will. He claimed that the French Immigration Service bought the flight ticket in his name from Air France, obtained a boarding pass in his name and accompanied him to Lagos. He claimed he was paraded in handcuffs and in chains before other passengers in the aircraft by the French Immigration officers, and was beaten up by the officers. He further alleged that he was not served any meal throughout the flight. In other words, while his flight was safe, he felt unsafe in a heat of discomfort. 

Mr. Adesina also argued that Air France was wrong to have allowed him on board the aircraft without a deportation order.

Air France denied any wrongdoing on the basis that it played no role in Mr. Adesina’s deportation as it is a private business organization and not an agent of the French Immigration Service.

Mr. Adesina’s case against Air France failed at the trial Court. His appeal to the Court of Appeal was dismissed and his further appeal to the Supreme Court met the same fate of failure. 

Thus, like an ill-fated flight, Mr. Adesina’s case crashed in the air and nothing was left of it, except the lessons as highlighted below.

Lack of Deportation Order

Mr. Adesina had contended that Air France was wrong to have allowed him on board the aircraft without a deportation order. The Court disagreed. It was held that Article 51 of the Montreal Convention of 1999 which provides for incomplete documentation in extraordinary circumstances (such as in the instant case) outside the normal scope of a carrier’s business absolved Air France of any liability and that Mr. Adesina failed to show any contrary provision establishing Air France’s liability on the lack of the deportation order. 

Alleged Rights Violation & Role of Airlines in Deportation

The Court held that there was no evidence that Air France or any of its staff was responsible for the alleged inhuman and degrading treatment Mr. Adesina suffered. 

Agim, JSC used the opportunity to settle the principles regarding the role of airlines in deportation under Aviation Law (at pages 556-558 of the report). With commendable lucidity, his Lordship stated:

This case has raised the now oft recurring question of the role commercial air carriers play or are expected to play during deportation when they provide seats in their commercial flights to detainees and security officials accompanying them on the flight… In my view, the answer to this question would depend on whether it provided seats for the deportee and security officials to help the enforcement of the deportation or it sold the seats to the security officials in the ordinary course of its business as a commercial air carrier. Where the air carriage is to help the deportation, the air carrier becomes part and parcel of the deportation process and may be jointly liable for any violations of the right of the deportee in the aircraft during the flight. Where the air carrier provided the seats in the aircraft to the security officials in the ordinary course of its commercial air carriage business, it would be difficult to find it complicit in the restrictions on the rights of the deportee by the security officials, in the absence of any overt acts of the officials of the commercial air carrier that violate the rights of the deportee or in the absence of other willful misconduct or default that results in the violation of the rights of the deportee. In this case, there is no evidence that the Respondent [Air France] cooperated with or had an arrangement with the French security officials to assist them in deporting the Appellant to Nigeria and that the air carriage of the security officials and the Appellant was in furtherance of that cooperation or arrangement. Rather, the evidence establishes that the security officials paid for seats for the Appellant and themselves on one of the regular commercial flights of the Respondent from Lyon in France to Lagos in Nigeria.

Alleged omission by Air France

It was also argued by the Appellant that while the French security officers were violating his rights during embarkation by forcing him to enter the aircraft and chaining his legs and handcuffing him throughout the flight, the officials of Air France did not stop them or show their disapproval of their ill-treatment of the Appellant on the aircraft. The Supreme Court held that this omission or failure by the officials of Air France is not enough to make Air France complicit and liable. 

More on deportation order

Interestingly, the Appellant had contended that Air France failed in its role to demand to be shown the deportation instrument or order and to ensure that the deportation was a legitimate process and not a kidnap or some other crime being carried out in the guise of legal deportation using the airline as a means to achieve that illegal objective. Although the Supreme Court found this argument compelling and valid in the light of contemporary experiences, however, it had no difficulty discountenancing it because the Appellant himself showed that the deportation was a legitimate legal process by his deposition that on arrival in Lagos, Nigeria, the French security operatives handed him over to the Nigerian Immigration officials at the Murtala Mohammed Airport, Lagos. 

The Appellant behaved like the proverbial chicken

The Supreme Court rightly upheld the position of the Court of Appeal that it was curious that the Appellant did not sue the French Immigration Service and that the suit against Air France ought to be struck out for want of jurisdiction on grounds of misjoinder of a party. Okoro, JSC made these vital observations (at pages 545-547) and concluded that this was a typical case of transfer of aggression. According to him:

The Appellant in this case is behaving like the proverbial chicken which turned its neck from the person who slaughtered it to the person merely removing the feathers. 

  



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has advised a number of both established and startup tech companies. He tweets @siazubuike.

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