DANA AIRLINES LIMITED
1. MRS. TITIOLA AIKHOMU
(Suing as administratrix of the Estate of
Mr. Ehime Aikhomu (deceased) for and on behalf
of the dependents of the deceased)
2. STACEY VEOLETTE SELLERS
(Sued as the personal representative of the
Estate of Mr. Peter Simon Waxtan)
COURT OF APPEAL (LAGOS DIVISION)
TOM SHAIBU YAKUBU JCA
(Presided and Read the Lead Judgment)
JAMILU YAMMAMA TUKUR JCA
EBIOWEI TOBI JCA
FRIDAY, 25 OCTOBER 2019
1. Whether the learned trial judge erred in law when he failed to attach weight or probative value to paragraph 3 of the appellant’s counter-affidavit dated 6 March 2015 declaring same as incompetent.
2. Whether the learned trial judge was not wrong in his interpretation and application of section 48 (3) Civil Aviation Act 2006, Article 28 of the Convention as modified in reaching the conclusion that the appellant is in breach of fiduciary relation under the doctrine of equity against the 1st respondent.
3. Whether with regards to the position of the law on award of pre-judgment and post judgment interests, the learned trial judge erred in law when he awarded 21% interest per annum as pre-judgment and 10% per annum as post-judgment interest to the 1st respondent.
4. Whether the learned trial judge has judicially and judiciously exercised his discretion when he awarded the cost of US$10,000 for this suit to the 1st respondent.
The 1st respondent’s husband died on board Dana Airlines which crashed on 3 June 2012, she filed an action in the High Court of Lagos State as the administrator of the deceased estate against the appellant and the estate of the 2nd respondent who was the pilot of the aircraft, seeking advance payment of US$30,000, pre and post judgment interest. The appellant made the advance payment and filed a counter-affidavit to the effect that the 1st respondent failed to contact it to establish familiar link and immediate economic need. The trial court granted all the reliefs sought by the 1st respondent. Dissatisfied, the appellant appealed to the Court of Appeal contending that the lower court erred in its holding that the appellant breach fiduciary relation under the doctrine of equity against the 1st respondent.
In determining the appeal, the Court of Appeal considered the following statutes:
Section 115(3) and (4) of the Evidence Act, 2011:
(3) When a person deposed to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(4) When such belief is derived from information received from another person the name of his informant shall be stated and reasonable particulars shall be given respecting the informant and the time, place and circumstance of the information.
Section 48(3) of the Nigerian Civil Aviation Act, 2006:
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 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 person. Such advance payments shall not constitute recognition of liability and may be set off against any amounts subsequently paid as damages by the carrier.
Article 28 – Advance Payments:
In the case of aircraft accidents resulting in death or injury of passengers, the carrier shall, make advance payments without delay to a natural person or persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons. Such advance payment amount shall not constitute recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier.
DANA AIRLINES LIMITED