The court of Appeal, Lagos Division has held that the Nigerian Civil Aviation Authority (NCAA) cannot be held liable for the crash of the Associated Aviation Nigeria Limited’s (AANL) aircraft that killed Deji Falae, the son of the former Secretary to the Government of the Federation, Chief Olu Falae, on October 3, 2013.

A three man panel of the court, comprising Justices Onyekachi Aja Otisi, Abubakar Sadiq Umar and Adebukunola Banjoko unanimously set aside the decision of the lower court, which granted the defendants reliefs against the appellant.

In the lead judgment, delivered March 22 and which its Certified True Copy (CTC) got to our correspondent at the weekend, Justice Umar upturned the judgment of Justice Hadiza Shagari of the Federal High Court, Lagos.

The lower court delivered the judgment on March 28, 2018 and granted the claims of the plaintiffs against NCAA and AANL.

Following the crash, the widow of the deceased, Mrs Ese Lynn Falae, had filed the action with her three infant children as 1st to 4th plaintiffs against AANL and NCAA as 1st and 2nd defendants respectively.

The plaintiffs, among others, prayed the court to declare that the defendants breached their common law duty of care when the deceased died in the fight 361, which was in possession and control of the 1st defendant (AANL).

“A declaration that the 2nd defendant (NCAA) breached its statutory duties imposed by Section 31 (1) 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.”

“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 parties such as the plaintiffs,” they had prayed.

The plaintiffs, therefore urged the court to award $100,000 jointly and or severally against the defendants in their favour for the breach of their respective duties under the common law and Civil Aviation Act, 2016.

They asked for other amounts, including a N5 million cost of filing and prosecuting the claims. In her decision, Justice Shagari granted all the claims of the plaintiff.

Dissatisfied, the 2nd defendant (NCAA) and its lead counsel, Emeka Okpoko (SAN) filed an appeal and joined the four plaintiffs as well as AANL as the sixth defendant.

It raised four issues for determination, among which was whether the trial court was right in law by granting all the reliefs sought by the 1st to 4th defendants in the light of the provisions of the Civil Aviation Act.

“Whether the trial court was right in law when it 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,” it asked.

In its lead judgment, the appeal court reprimanded the 5th defendant (AANL) for filing a sole brief of argument in criticism of the lower court judgment, when it didn’t file any appeal against it.

The court said the defendant, instead of playing its role as a respondent in due observance of rules of appellate practice “turned itself to an appellate who has not filed a notice of appeal,” adding that the traditional role of a respondent is to defend the decision being appealed against and not to criticise it.

Justice Umar held: “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 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. AANL 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; or that such damage was solely due to the negligence or other wrongful act or omission of a third party.

“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, 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 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 March 28, 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.”