NCAA v. FALAE & ORS
(2022)LCN/17185(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, March 22, 2022
CA/L/1183/2018
Before Our Lordships:
Onyekachi Aja Otisi Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Between
NIGERIA CIVIL AVIATION AUTHORITY APPELANT(S)
And
1. MRS. ESE LYNN FALAE 2. MASTER AYOMIDE FALAE (AN INFANT BY HIS NEXT FRIEND MRS. ESE LYNN FALAE) 3. MISS. OMOWONUOLA FALAE (AN INFANT BY HIS NEXT FRIEND MRS. ESE LYNN FALAE) 4. MASTER OREOLUWA FALAE (AN INFANT BY HIS NEXT FRIEND MRS. ESE LYNN FALAE) 5. ASSOCIATED AVIATION NIGERIA LTD RESPONDENT(S)
RATIO
THE POSITION OF LAW WHERE DOMESTIC/COMMON LAW RIGHT HAS BEEN ENACTED INTO A STATUTORY PROVISION
This Court in Akinjokun v. Lufthansa German Airlines & Anor (2018) LPELR-46729(CA), per Jauro, JCA (now JSC), said, pages 25-26:
“The law is that where domestic/common law right as been enacted into a statutory provision, it is to the statutory provision that resort must be had for such right, and not the domestic/common law, Hence an air passenger is not at liberty to choose as between the provisions of the convention and the domestic/common law, for claims for damages against the carrier. Such claims have to asserted only in accordance with and subject to the terms and conditions of the convention and cannot be pursued under any other law.”
(Emphasis mine).
In Air France v. Mrs. Francisca Majasan (2017) LPELR 43500(CA), this Court recognized that, page 16:
“The Montreal Convention entered into force on May 28, 1999. Nigeria is signatory to the Montreal Convention. It came into force in Nigeria on November 4, 2003, and was domesticated in Nigeria by the Civil Aviation Act, 2006.”
By Section 48(2) of the Civil Aviation Act, the provisions of the said Act apply to non-international carriage by air within Nigeria, and govern the rights and liabilities of carriers, passengers, and other persons. PER OTISI, J.C.A.
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Federal High Court sitting in Lagos delivered by Hadiza Shagari J. on 28th March, 2018 granting the claims of the 1st – 4th Respondents as Plaintiffs against the 5th Respondent and Appellant as 1st and 2nd Defendants respectively.
BRIEF STATEMENT OF FACT
The case of the 1st – 4th Respondents as Plaintiffs at trial was that on 3rd October, 2013, one Mr. Ayodeji Falae (deceased), (husband to the 1st Respondent and father to the 2nd – 4th Respondents) and some other Ondo State Government Officers boarded the 5th Respondent’s flight 361 chartered to lift the remains of late Olusegun Agagu to Akure, Ondo State. That about 09.32 hours, just about a minute after take-off from Murtala Mohammed Airport, Lagos, the aircraft crashed outside the aerodrome and killed the deceased.
In view of the above, the 1st – 4th Respondents instituted an action at the Federal High Court sitting in Lagos via a Writ of Summons and Statement of Claim dated 2nd October, 2014 against the 5th Respondent and Appellant as 1st and 2nd Defendants respectively seeking the following reliefs:
i.)“A declaration that by its wrongful act, neglect or default, the First Defendant on 3 October, 2013 caused the death of the deceased when its flight 361 (at about 9.32 in the morning a minute after take-off and just outside of the aerodrome) crashed.
ii.) A declaration that the first Defendant breached its statutory duties imposed by Section 55 of the Civil Aviation Act 2006 when its flight 361 (at about 9.32 in the morning a minute after take-off and just outside of the aerodrome) crashed and indeed caused the death of the deceased.
iii.) A declaration that the 2nd Defendant breached its statutory duties imposed by Section 31 (f) of the Civil Aviation Act when the 1st Defendant’s flight 361 (at about 9.32 in the morning a minute after take-off and just outside of the aerodrome) crashed and indeed caused the death of the Deceased.
iv.) A declaration that the 1st Defendant breached Section 74 of the Civil Aviation Act 2006 by its wrongful act or failure to procure a legally binding insurance policy covering its liabilities under the Act and also its liabilities towards compensation for damages that may be sustained by third party such as the Plaintiffs.
v.) A declaration that the 1st Defendant having failed to procure a legally binding insurance policy pursuant to Section 77 of the Civil Aviation Act 2006, the 2nd Defendant has breached its duties under Section 31 (f) of the Civil Aviation Act 2006 to ensure efficiency and regularity of the Air navigation and the safety of aircraft, persons and property carried in aircraft and for preventing aircraft from endangering persons and property.
vi.) A declaration that the 1st Defendant breached its common law duty of care when the Deceased died in the flight 361 which was in possession and control of the 1st Defendant.
vii.) The sum of US$100,000 (One Hundred United State Dollars) from the 1st and 2nd Defendant jointly and/or severally as general damages for the breaches of their respective duties under common law and the Civil Aviation Act 2006.
viii.) The sum of N219,906,250 as assessed in schedule A from the 1st and 2nd Defendants jointly and/or severally being the net income (less the Deceased’s living expenses, cash discount and general damages of $100,000) the Deceased would have made for 15 years as special damages for the breaches of their respective duties under common law, Civil Aviation Act 2006, Fatal Accident Act 1846 and Fatal Accident Law of Lagos State.
ix.) IN THE ALTERNATIVE TO THE RELIEF IN PARAGRAPH 31(H) ABOVE, the sum of N108, 527,740 and $19,000 as assessed in Schedule B from the 1st and 2nd Defendants jointly and/or severally being cost of dependency by the Plaintiffs on the Deceased (less cash discount and general damages of $100,000) special damages for the breaches of their respective duties under common law, Civil Aviation Act 2006, Fatal Accident Act 1846 and Fatal Accident Law of Lagos State.
x.) The sum of N5,000,000 being the cost to the Plaintiffs filing and prosecuting this claim and legal practitioner’s fees.
xi.) The Plaintiffs claim post-judgment interest on the judgment sum which may be awarded at the rate of 10% per annum from the date of judgment until judgment sum is finally paid.
In response, the 5th Respondent as 1st Defendant at trial filed its Statement of Defence dated 20th December, 2016 while the Appellant as 2nd Defendant filed its Statement of Defence dated 2nd March, 2016. The 1st – 4th Respondents also filed a Reply to the 1st Defendant’s Statement of Defence dated 6th March, 2017 and a Reply to the 2nd Defendant’s Statement of Defence dated 29th June, 2016.
Upon the close of trial and final addresses of parties, the trial Court entered judgment for the 1st – 4th Respondents against the Appellant and 5th Respondent jointly and severally.
Dissatisfied with the judgment of the trial Court, the Appellant invoked the appellate jurisdiction of this Court via a notice of appeal dated 6th April, 2018. The notice of appeal containing five grounds of appeal is at pages 517 – 522 of the record of appeal.
In line with the rules and practice of this Court, parties filed and exchange their respective briefs of argument. The Appellant’s brief is dated and filed 24th June, 2020. The said brief was settled by ONYINYE J. UZOH who for the determination of the appeal distilled four issues to wit:
1. “Whether the trial Court was right in law in his evaluation of evidence and ascribing probative value to the evidence placed before it, particularly to the extent that concerned the Appellant having regard to the facts and circumstances of this case. (Grounds 1 and 3).
2. Whether in the light of the provisions of the Civil Aviation Act, the learned trial Judge was right in law to have granted all the reliefs sought against the Appellant.
3. Whether the judgment given outside the constitutionally required period when no new issue of law was raised during the re-adoption of the final addresses is competent in law.
4. Whether the trial Court was right in law when he held that the doctrine of res ipsa loquitur applied to establish failure to exercise duty of care to the extent that concerns the Appellant having regard to the facts and circumstances of this case.”
The 1st – 4th Respondents’ brief is dated 21st October, 2021 and filed on 25th October, 2021. The said brief was settled by MUYIWA OGUNGBENRO ESQ., who also distilled four issues for the determination of the appeal as follows:
1. “Whether the trial Court’s finding regarding the application of res ipsa loquitur can be faulted or was wrong? (Distilled from ground 5 of the notice of appeal).
2. Whether taking into consideration the evidence placed before the trial Court and having regard to the facts and circumstances of this case, the trial Court was right in entering judgment for the first – fourth Respondents? (Distilled from grounds one and three of the notice of appeal).
3. Whether the trial Court’s finding on the applicability of common law, Fatal Accident Act and Fatal Accident Law of Lagos State was correct and enough justification for the award of general and special damages to the first – fourth Respondents? (Distilled from ground two of the notice of appeal).
4. Whether the trial Court’s judgment should be set aside on the ground that it was delivered outside the constitutionally required period taking into consideration the re-adoption of final written addresses by the parties? (Distilled from ground four of the Notice of Appeal).
The 5th Respondent’s brief of argument is dated 14th January, 2022 and filed on 17th January, 2022. The said brief was settled by M. ADEREMI BASHUA ESQ., who for the determination of the appeal distilled a sole issue to wit: “Whether the trial Court Judge applied the appropriate law to the facts of the case.”
Before I venture into the arguments and submissions of counsel in this appeal, I will start with the propriety of the 5th Respondent’s brief of argument. The 5th Respondent instead of playing its role as a Respondent in due observance with the rules of appellate practice turned itself to an Appellant who has not filed a notice of appeal.
The traditional role of a Respondent is to defend the judgment being appealed against and not to criticize it. See AJAYI V. ADEBIYI & ORS (2012) LPELR – 7811 (SC), DANGANA & ANOR V. USMAN & ORS (2012) LPELR – 25012 (SC).
The 5th Respondent in this appeal criticized the decision of the trial Court on its applicability of the Fatal Accident Act, Fatal Accident Law of Lagos State and the common law in the determination of the issues submitted by the parties.
The law is that a party who wishes to have the decision of a Court set aside must come by way of notice of appeal or cross-appeal. In the light of this, the said brief filed by the 5th Respondent will not be countenanced in the determination of the instant appeal. Consequently, the 5th Respondent’s brief of argument is hereby struck out.
In the determination of this appeal, it is apparent that the issues formulated by the Appellant and the 1st – 4th Respondents (hereinafter referred to as the Respondents) are identical in substance and in form, hence I shall adopt the issues formulated by the Appellant’s counsel in my resolution.
For ease of reference, I shall reproduce the said issues in the order I feel expedient as follows:
ISSUE NO.1
Whether the judgment given outside the constitutionally required period when no new issue of law was raised during the re-adoption of the final addresses is competent in law?
On the above issue, counsel for the Appellant submitted that the final addresses were adopted on the 19th October, 2017 and on the 5th March, 2018, the parties were invited to re-adopt the said final addresses. Counsel submitted further that during the re-adoption of the said addresses, no new issue was raised for consideration hence, the judgment of trial Court was incompetent. Reliance was placed on the cases of AWOYALE V. OGUNBIYI (1985) LPELR (661) 1 at 19-20, IDOWU & ORS V. SEGUN KOYA INVESTMENTS LTD (2017) LPELR-43580(CA) AND IFEMESIA V. ECOBANK (2018) LPELR-46589(CA).
In response to the submission of the Appellant on the constitutionality of the decision of the trial Court, the Respondents’ counsel submitted that Courts are vested with discretion to call for re-adoption of final written addresses where it requires parties to address it on new, moot, grey issue or issues raised suo motu by the Court. Reliance was placed on GUBLA V. LAWUYI & ORS (2019) LPELR – 48391 (CA).
Counsel submitted further that where a party seeks to set aside a judgment on the ground that it was not delivered within the statutory period, the party must show that the non-compliance occasioned a miscarriage of justice. That the Appellant in its brief has not shown that it suffered any miscarriage of justice as result of the non-compliance with the provision of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
RESOLUTION
Without dissipating much energy on an elementary principle of law that has been dealt with in a legion of judicial authorities, it is elementary to state that the constitutional provision that mandates judges to deliver their decisions within a 90 days window is not left without qualification. See Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
A decision delivered outside the 90 days window without more cannot be declared unconstitutional and a nullity. The simple reason why this provision of the law is in place is to ensure that a trial judge does not go into oblivion of the facts of the case and the demeanour of witnesses when writing his judgment. Proper evaluation of evidence and the ascription of probative value is crucial to any decision, hence the trial judge must not be found wanting in this regard and by virtue of human error, it is presumed that the trial judge who delivers his decision outside 90 days might have lost his position to properly evaluate the evidence led before him.
The qualification that comes with this principle is that a party who wants an appellate Court to set aside the decision of a Court delivered outside the 90 days must not only show that the decision was so delivered outside 90 days, like the Appellant in the instant appeal, the party must go further to show that such failure to comply with the provision of Section 294 (1) of the Constitution (supra) occasioned a miscarriage of justice. See 294(5) of the Constitution (supra).
The Appellant in the instant appeal failed woefully in this regard by not showing even in the slightest of manners how it suffered a miscarriage of justice. The Appellant only satisfied the first limb of the principle in Section 294 (1) of the Constitution (supra) but failed to satisfy that it suffered any injustice or miscarriage of justice. See Section 294 (5) of the Constitution (Supra).
Without further ado, this issue is resolved against the Appellant and in favour of the 1st – 4th Respondents.
ISSUE NO. 2
Whether in the light of the provisions of the Civil Aviation Act, the learned trial Judge was right in law to have granted all the reliefs sought against the Appellant.
This issue is similar to the issue no. 3 formulated by the Respondents’ counsel. This issue centres on whether the trial Court was right in its application of common law, Fatal Accident Act and Fatal Accident Laws of Lagos State to the case filed by the Respondents.
On this issue, counsel for the Appellant submitted that aviation claims can only be made in strict compliance with the Civil Aviation Act and aviation claims being sui generis, are governed by the Civil Aviation Act and not common law, Fatal Accident Act 1846 and Fatal Accident Law of Lagos State. Reliance was placed on OTOAKHIA v. AERO CONTRACTOR NIGERIA LTD (2014) LPELR-23319(CA). He argued that the law is trite that where domestic/common law right as been enacted into a statutory provision, it is to the statutory provision that resort must be had for such right, and not the domestic/common law. Counsel referred the Court to Section 48 (2) & (3) of the Civil Aviation Act. He submitted further that Section 48 (2) of the Civil Aviation Act and all that it stands for, are clear to the effect that it is only the Civil Aviation Act and Convention that regulates aviation claims.
Flowing from the hills of the above, counsel submitted that reliefs’ g, h, I, j and k of the Respondents’ claims are bound to fail since same are not legitimate claim given under the aviation law.
By way of reply, counsel for the Respondents submitted that the Civil Aviation Act only deals with an aspect of the Respondent’s case and that the damages sought by the Respondents also fall under the purview of the Fatal Accident Act and Fatal Accident Law of Lagos State. Reliance was placed on N.B.C. PLC V. ABUBAKAR (2006) ALL FWLR (Pt. 335) 122 at 140 (CA).
Counsel submitted that the second limb of Article 21 of the Montreal Convention states that the liability of the carrier shall not exceed 100,000 USD if the carrier proves that such damages was not due to its negligence or the wrongful act or omission or that of its servants or agents or that such damage was solely due to the negligence or other wrongful act or omission of a third party. Counsel for the Respondents submitted that the second limb of Article 21 permits the trial Court to grant an amount in excess of $100,000 where the Appellant has failed to prove that it was not negligent or that it did not commit any wrongful act or omission.
RESOLUTION
In resolving this issue, recourse must be made to Section 48 of the Civil Aviation Act which provides as follows: “48 (1) The provisions contained in the Convention for the Unification of certain rules relating to International Carriage by Air signed at Montreal on 28th May, 1999 set out in the Second Schedule II of this Act and as amended from time to time, shall from the commencement of this Act have force of law and apply to international carriage by air to and from Nigeria, in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage, and shall, subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.
(2) The provisions contained in the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Montreal on 28th May, 1999 as has been modified and set out in the Third Schedule of this Act and as amended from time to time, shall from commencement of this Act have force of law and apply to non-international carriage by air within Nigeria, irrespective of the nationality of the aircraft performing the carriage, and shall, subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.
This appeal centres on non-international carriage by air within Nigeria. Going by the provision of Section 48(2) of the Civil Aviation Act reproduced above, the Convention for the Unification of certain rules relating to International Carriage by Air signed at Montreal on 28th May, 1999 and the provisions of the Civil Aviation Act shall govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.
There are legion of cases of this Court on the rules guiding the Court when faced with a question predicated on interpretation of statutes. The law is well settled that for the interpretation of the statutes, once the words used are clear and free from ambiguity, they should be accorded their natural meaning without any embellishments.
I should bear in mind that where the words of the legislature are clear, there is no room for applying any of the principles of interpretation. It is very clear that the words used in expressing the intention of the legislature in Section 48 of the Civil Aviation Act are plain and unambiguous.
After having carefully examined the provisions of Section 48(2) of the Civil Aviation Act (supra), I am of the view that the word “SHALL” in the context in which it is used means must, a matter of compulsion.
Flowing from the hills of the above, the rights and responsibilities of the parties in the instant appeal are subject to the provision of the Civil Aviation Act and other conventions it incorporated and certainly not the Fatal Accident Act, Fatal Accident Law of Lagos State and not the common law.
The law is that where domestic/common law right as been enacted into a statutory provision, it is to the statutory provision that resort must be had for such right, and not the domestic/common law. Hence an air passenger is not at liberty to choose as between the provisions of the convention and the domestic/common law, for claims for damages against the carrier. Such claims have to be asserted only in accordance with and subject to the terms and conditions of the convention and the Civil Aviation Act and cannot be pursued under any other law. See the case of AKINJOKUN V. LUFTHANSA GERMAN AIRLINES & ANOR (2018) LPELR – 46729 (CA).
I am therefore of the unflinching view that the rights and liabilities of the parties can only be determined within the purview of Section 48(2) and (3) of the Civil Aviation Act (supra).
Section 48(3) of the Civil Aviation Act provides for the liability of the carrier in the event of death of a passenger. The said section provides that:
(3) In any case of aircraft accident resulting in death or injury of passengers, the carrier shall make advance payments of at least US $30,000 (thirty thousand United States Dollars) within 30 (thirty) days from the date of such accident, to the natural person or such natural persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons and such advance payments shall not constitute recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier.”
While the Appellant under this issue has argued that the Respondents are only entitled to the sum of 100,000 USD as a result of the death of Mr. Ayodeji Falae (Deceased), the Respondents on the other hand have made heavy weather on the fact that according to Article 21 of the Montreal Convention, the liability of the carrier shall exceed the sum of 100, 000 USD if the carrier cannot prove that the damage was not due to its negligence or other wrongful act or omission of the carrier or its servants or agents or such damage was sole due to the negligence or other wrongful act or omission of a third party. The Respondents’ counsel submitted in paragraph 6.16 and 6.17 of the 1st – 4th Respondents brief as follows:
“The second limb of Article 21 permits the trial Court to grant an amount in excess of $100, 000 where the Appellant has failed to prove that it was not negligent or that it did not commit any wrongful act or omission.
As argued under issues 1 and 2 above, the Appellant failed to establish that it was not negligent. Therefore, the first – fourth Respondents are entitled to special damages as pleaded.”
The provisions of Article 21 of the Montreal Convention is instructive on this note. For ease of reference, permit me to reproduce the provision of Article 21 of the Montreal Convention as follows:
“ARTICLE 21- COMPENSATION IN CASE OF DEATH OR INJURY OF PASSENGERS
For damages arising under paragraph 1 of Article 17 not exceeding 100,000.00 United States Dollars for each passenger, the carrier shall not be able to exclude or limit its liability.
The carrier shall not be liable for damages arising under Paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 United States Dollars if the carrier proves that; such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or such damage was solely due to the negligence or other wrongful act or omission of a third party.”
Going by the above provision of the Montreal Convention, I am inclined to agree with counsel for the 1st – 4th Respondent only to the extent that the liability of the carrier can exceed the sum of 100, 000 USD if either of the two conditions cannot be met by the carrier.
However, the case of the 1st – 4th Respondent as to whether they are entitled to damages exceeding the sum of 100, 000 USD brings us to the consideration of the other issues in this appeal i.e. whether the trial Court was right to have invoked the doctrine of res ipsa loquitur against the Appellant; whether the Appellant can be liable to the claims of the Respondents or whether it proved that it was not negligent in the event causing the death of Mr. Ayodeji Falae (Deceased).
Going by the provisions of the Civil Aviation Act and the Montreal Convention elaborately considered in the preceding part of this judgment, the pivotal question upon which the claims of the 1st – 4th Respondents against the Appellant rest on in this appeal is: “WHO IS THE CARRIER?”
Going by the provisions of Section 48 of the Civil Aviation Act and Article 21 of the Montreal Convention, the success of any claim in excess of the statutory damages of 100, 000 USD is dependent on the evidence led by the carrier which the Appellant is not. The carrier in the instant appeal is the 5th Respondent i.e. Association Aviation Nigeria Limited and it is the cooperate body with the evidential burden of proving that: 1. “Such damage was not due to its negligence or its other wrongful act or omission or that of its servants or agents; or
Such damage was solely due to the negligence or other wrongful act or omission of a third party.”
The notice of appeal before this Court is that of the Appellant who was 2nd Defendant at trial and this appeal can only be decided within the confines of the grounds of appeal and the issues for determination as it relates to the Appellant in this appeal.
Flowing from the hills of the above, It is my conclusion that the rights and liabilities of the parties can only be decided within the purview of the Civil Aviation Act and other conventions which it incorporates. Also, going by Section 48(2) of the Civil Aviation Act (supra), the Appellant, not being the carrier in the instant appeal cannot be liable to the claims of the 1st – 4th Respondents, i.e. whether the sum of 100, 000 USD or any amount in excess. In my final analysis, this issue is hereby resolved against the 1st – 4th Respondents and in favour of the Appellant.
Consequently, the issues as to whether the trial Court was right to have invoked the doctrine of res ipsa loquitur against the Appellant and whether the Appellant through credible evidence was able to prove that it was not negligent in the event that caused the death of Mr. Ayodeji Falae (Deceased) have become otiose and therefore irrelevant in the determination of the instant appeal.
On the whole, I hold that the appeal succeeds in part. That part of the judgment of the trial Court delivered by Hadiza Shagari J., on the 28th March, 2018 granting reliefs sought by the 1st – 4th Respondents against the Appellant as 2nd defendant is hereby set aside. Parties are to bear their respective costs.
ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Abubakar Sadiq Umar, JCA, made available to me a copy of the judgment, now delivered, in draft form, in which this appeal was allowed in part. I agree with and adopt as mine the resolution of the issues in contention, as comprehensively done by my learned brother. I will only make few comments in support.
This Court in Akinjokun v. Lufthansa German Airlines & Anor (2018) LPELR-46729(CA), per Jauro, JCA (now JSC), said, pages 25-26:
“The law is that where domestic/common law right as been enacted into a statutory provision, it is to the statutory provision that resort must be had for such right, and not the domestic/common law, Hence an air passenger is not at liberty to choose as between the provisions of the convention and the domestic/common law, for claims for damages against the carrier. Such claims have to asserted only in accordance with and subject to the terms and conditions of the convention and cannot be pursued under any other law.”
(Emphasis mine).
In Air France v. Mrs. Francisca Majasan (2017) LPELR 43500(CA), this Court recognized that, page 16:
“The Montreal Convention entered into force on May 28, 1999. Nigeria is signatory to the Montreal Convention. It came into force in Nigeria on November 4, 2003, and was domesticated in Nigeria by the Civil Aviation Act, 2006.”
By Section 48(2) of the Civil Aviation Act, the provisions of the said Act apply to non-international carriage by air within Nigeria, and govern the rights and liabilities of carriers, passengers, and other persons.
Having settled the applicability of the Civil Aviation Act as against the Fatal Accident Law of Lagos State, the crucial query is whether the Appellant can be described as the carrier.
The transportation, leading to the mishap in issue herein, was by an air carrier.
Merriam-Webster.com Dictionary defines air carrier as:
1. An organization transporting passengers and cargo by aircraft: AIRLINE
2. An aircraft certificated by a designated governmental agency to carry persons or cargo for hire.
Thus, an air carrier is a body that undertakes directly by lease, or other arrangement, to engage in air transportation. An air carrier has the control over the operational functions performed in providing that transportation. See Sections 32 – 34 of the Civil Aviation Act, 2006.
The Appellant is the authority, acting through its Director General, in charge of the regulating and fostering of the safety of Civil Aviation in Nigeria. The Appellant was not the carrier, within the meaning of the Section 48(2) of the Civil Aviation Act, and therefore, cannot be held liable to the claims of the 1st — Respondents.
For this reason and for the more robust reasons given by my learned brother, I also allow this appeal in part and abide by the orders made in the lead judgment.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I have carefully perused the judgment delivered by my learned brother HON. JUSTICE ABUBAKAR SADIQ, JCA and found out that His Lordship rightly resolved all the issues involved in this appeal.
It is elementary that judgment/decision delivered outside the ninety days window is valid except where an Appellant can satisfy the Court that the failure to deliver the judgment within the stipulated time has occasioned a Miscarriage of Justice. See Section 294(5) of the Constitution of the Federal Republic of Nigeria 1999, AKOMA & ANOR VS OSENWOKWU & ORS (2014) LPELR – 22885 (SC) and OWOYEMI VS ADEKOYA (2003) 18 NWLR (PART 852) PAGE 307. The Appellant in this case has failed to show how the failure of the trial Judge to deliver judgment within the ninety days window has occasioned Miscarriage of Justice.
Section 48 of the Civil Aviation Act 2006 incorporates the Provisions of the Convention for the Unification of Certain Rules relating to International Carriage 1999 (Also known as Montreal Convention 1999). It clearly provides that Montreal Convention shall be applicable to Domestic Flights regardless of the Nationality of the Aircraft performing the carriage and shall govern the Rights and Liabilities of Carriers, Passengers. Consignors, Consignees and other Persons.
It is trite that where Domestic/Common Law Right has been enacted into a Statutory Provision, it is the Statutory Provision that must be had for such right, not the Domestic/Common Law Right. I am also in agreement with His Lordship that an Air Passenger is not at liberty to choose as between the Provisions of the Convention and the Domestic/Common Law for Claims for Damages against the Carrier.
Thus the rights and liabilities of the carrier and the air passengers can only be determined by the Provisions of Section 48(2) of the Civil Aviation Act 2006 and not the Fatal Accident Act or Fatal Accident Law of Lagos State. See IBIDAPO VS LUFTHANSA AIRLINES (1997) LPELR SC AND HARKA AIR SERVICES VS IKEAZOR (2011) 13 NWLR (PART 1264) PAGE 320
In respect of Article 21 of the Montreal Convention 1999, an Air Carrier will not be liable for damages exceeding $100,000 (One Hundred Thousand Dollars) provided the carrier proves that the damage was not due to negligence or other wrongful act or omission of the carrier or its servants or agents or such damage was due to wrongful act or omission by a third party. In this instant case, it is only the 5th Respondent that is required to prove that the damaged caused was not due to its negligence or the omission of its servants or agent. The Appellant is not the carrier but a regulatory agency and as such cannot be held liable to the claims of the 1st – 4th Respondents. Consequently, the trial Court was in error to have held the Appellant liable to pay damages to the 1st – 4th Respondents.
For these reasons, I agree with the decision of His Lordship to allow this appeal in part. To this end, the judgment of the trial Court delivered by Hon. Justice Hadiza Shagari in Suit No: FHC/L/CS/1494/2014 granting the reliefs sought by the 1st – 4th Respondents against the Appellant is hereby set aside. I also abide by the order made as to costs.
Appearances:
Emeka Okpoko (SAN) with him, Abazie For Appellant(s)
Muyiwa Ogunbenro with him, Simon Oluwa and Esther Ollowo – for 1st, 2nd 3rd, and 4th Respondents.
M. A. Bashua – for 5th Respondent. For Respondent(s)
