Dana Air crash: Consortium of lawyers breaks new grounds in Aviation litigation
In a series of well-considered rulings delivered by Honourable Justice M. B. Idris of the federal high court in Lagos, who gave the court’s decision in respect of the applications brought by 23 families of the victims of the Dana Air plane crash of June 3, 2012, in actions instituted on May 30 and June 2, 2014. The learned judge agreed with and upheld the submissions of the Plaintiffs/Applicants’ Solicitors on the four categories of applications before him granting all the reliefs sought in the applications.
The applications were filed by a consortium of lawyers known as the Aviation Attorney Group led by Oba Nsugbe, QC, SAN of Pump Court Chambers, Dr. B. A. M. Ajibade, SAN, FCIArb Managing Partner of the firm of SPA Ajibade & Co and Ajibola Dalley, Esq. of GRF Dalley & Partners and their foreign colleagues Jim Morris and Rebecca Smith – both of Irwin Mitchell Solicitors in the United Kingdom. The team also included, P. O. Olalere, Esq. and Lekan Ikuomola, Esq. of SPA Ajibade & Co.
It was gathered that, as at the time of filing the applications resulting in these rulings, which have come almost 3 (three) years after the air crash, a considerable number of the persons entitled to receive the USD $30,000.00 advance payments from Dana Air remained unpaid.
While the applicable convention (the Convention for the Unification of Certain Rules for International Carriage by Air signed at Montreal on 28th May 1999) and the Nigerian Civil Aviation Act No. 6 of 2006 (NCAA 2006) which modified, incorporated and set out the Convention in its Third Schedule, by its Section 48(2), makes clear provision for when and how compensation should be paid to the families of victims of fatal air crashes, the carriers in most of the air crashes that have occurred in Nigeria have failed to comply with their statutory obligation to pay compensation as prescribed by law. Section 48 (3) of the NCAA 2006, particularly requires the carrier to make advance payments of at least USD $30,000.00 within 30 days from the date of such aircraft accident resulting in death or injury of passengers, to the natural person or such natural persons who are entitled to claim compensation.
While this area of the law has been considerably developed in other jurisdictions, carriers in Nigeria and their insurers and agents have historically for the most part, tactfully strung the beneficiaries of these statutory payments along with promises of payment until their causes of action are caught up by the 2 year limitation period prescribed by Article 35 of the Convention. These families are also often too overwhelmed by the loss of their loved ones to challenge the actions of the carriers in the court of law; and this had made it practically impossible for the Nigerian courts to establish a precedent until now.
The opportunity to set the standard on the questions relating to when and how the initial compensation of $30,000.00 should be made, who is liable to prove what, whether the total quantum of damages payable by the carrier is limited to $100,000.00 and what defence is available to the carrier arose before Honourable Justice Mohammed Baba Idris, who has now laid down clear precedent on these recondite points of law for future aviation claims in Nigerian Courts.
At the Court’s resumed sitting last Thursday, June 17, 2015, the defendants’ counsel, Abisola Keshinro informed the court that they had filed an application before the Court of Appeal seeking an order extending time for them to appeal against the court’s ruling and staying execution of the ruling. She informed the court that they were seeking an early date for hearing of the applications. Counsel to the claimants confirmed receipt of these applications; informing the court that they had also filed applications seeking to amend the claims in three of its cases, to now reflect the specific damages claimed against Dana as original pleadings did not particularize these claims. They further informed the court that only one of these applications was ripe for hearing, as the other two were only just filed; indicating also that they intended to bring similar applications in all the cases and sought an adjournment so the applications could all be taken together.
After listening to Counsel on both sides, the judge adjourned the suits to 21st October 2015 for hearing.
The Aviation Attorney Group was formed to pursue, across jurisdictions, the statutory compensation due to the families/beneficiaries of the Estates of the unfortunate victims of the Dana Air crash.