Late Deji Falae And His Wife, Ese
Plane Crash: A’Court Upturns Late Deji Falae’s Favoured Judgment
The Lagos Division of Appeal Court, has set aside the judgement of a Lagos Federal High Court, delivered by Justice Hadizat Rabiu-Shagari, which ordered the Nigeria Civil Aviation Authority (NCAA) to pay N246 million as compensation to See, the widow of late Deji Falae, who died in the ill-fated Associated Aviation aircraft.
Justice Shagari had on March 28, 2018, ordered the Associated Aviation Nigeria Limited and the Nigeria Civil Aviation Authority to pay the sum of N246 million, as compensation for the death of Deji Falae in ill-fated aircraft.
Late Deji, died on October 3, 2013, when an Associated Aviation aircraft conveying the remains of a former governor of Ondo State, Olusegun Agagu, from Lagos to Ondo for burial crashed at the Lagos airport.
The aircraft reportedly crashed just outside the aerodrome at about 9:32 am, a minute after it took off.
Deji’s widow, Ese and her three children acting as the plaintiffs had sued the airline, asking the court to hold that the airline’s negligence was responsible for Falae’s death.
They had urged the court to declare that Associated Aviation Nigeria Limited and the Nigeria Civil Aviation Authority (NCAA) failed in their obligation of ensuring the safety of the passengers aboard Flight 361.
Upon the close of the trial, and final written addresses of the parties, the trial judge entered judgement and granted the reliefs sought by the respondents against the appellant.
Dissatisfied with the judgement, the Nigeria Civil Aviation Authority through its counsel, Emeka Okpoko (SAN) appealed the judgment and urged the Court to determine whether the trial judge was right in law in her evaluation of evidence and ascribing probative value to the evidence placed before the court.
The appellant also prayed the court to determine whether, in the light of the provisions of the Civil Aviation Act, the trial judge was right in law to have granted all the reliefs sought against the Appellant.
In its unanimous decision, delivered by Justice Onyekachi Otisi (presiding), Justice Abubakar Umar, and Justice Adebukunola Banjoko, the Appellate Court allowed the appeal and held that the trial judge was in error to have held the appellant liable to pay damages to the firstst to fourth respondents (Deji Falae’s family).
The Court aligned with the submissions of the appellant’s counsel and held that the appellant was not the carrier but a regulatory agency and as such cannot be held liable to pay claims to the Falae family (first to fourth Respondents).
Justice Abubakar Umar in his lead judgement held that; “Going by the above provision of the Montreal Convention, I am inclined to agree with counsel for the first to fourth respondents 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 first to fourth respondents, 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 first to fourth 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 fifth Respondent (Association Aviation Nigeria Limited) and it is the cooperate body with the evidential burden of proving that “such damage was not due to its negligence or its other wrongful act or omission or that of its servants or agents and that the damage was solely due to the negligence or other wrongful act or omission of a third party.”
Justice Umar further held that; ‘’the notice of appeal before this court is that of the Appellant who was second 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 first to fourth respondents, whether the sum of $100, 000 USD or any amount in excess. In my final analysis, this issue is hereby resolved against the first to fourth 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 trial court judgment delivered by Hadiza Shagari J. on the 28th March 2018 granting reliefs sought by the first to fourth respondents against the Appellant as second defendant is hereby set aside. Parties are to bear their respective costs”.
On whether the trial court’s judgement should be set aside on the ground that it was delivered outside the 90 days window as required by the constitution, Justice Umar held that the appellant failed to show even in the slightest of manners how it suffered a miscarriage of justice.
