DANA AIRLINES LIMITED V. AIKHOMU & ANOR. (2019)

Background

This appeal arose from the crash of Dana Airlines flight 9J-992 on 3 June 2012 at the Iju-Ishaga area of Lagos State. The accident involved a McDonnell Douglas 83 aircraft and caused the death of Mr. Ehime Aikhomu, the husband of the first respondent. Mrs. Aikhomu, acting as administratrix of the deceased’s estate and on behalf of his dependants, commenced proceedings at the Federal High Court, Lagos, against Dana Airlines Limited and the personal representative of the estate of the deceased pilot, Mr. Peter Simon Waxtan.

Among other reliefs, the first respondent sought the statutory advance payment of US$30,000, pre-judgment interest at 21% per annum from 3 June 2012 until judgment, post-judgment interest at 10% per annum, and US$10,000 as costs. The application was brought under section 48(3) of the Nigerian Civil Aviation Act 2006 and Article 28 of the Montreal Convention as modified and incorporated into Nigerian law. Dana Airlines eventually paid the US$30,000 on 5 March 2015, nearly three years after the accident, but maintained that the respondent had not promptly established the familial relationship and immediate economic need required for payment.

The trial judge granted the reliefs sought. Dana Airlines appealed, challenging the treatment of its counter-affidavit, the interpretation of the statutory advance-payment obligation, the awards of interest, and the US$10,000 costs.

Issues

1. Whether paragraph 3 of the appellant’s counter-affidavit was competent and entitled to probative value despite failing to state the time and place at which the deponent received the information.
2. Whether section 48(3) of the Civil Aviation Act 2006 and Article 28 of the Montreal Convention imposed a mandatory obligation to pay US$30,000 within 30 days of the accident.
3. Whether the awards of 21% pre-judgment interest and 10% post-judgment interest were legally justified.
4. Whether the trial court properly exercised its discretion in awarding US$10,000 costs.

Ratio Decidendi

The Court of Appeal held that section 115(4) of the Evidence Act 2011 requires an affidavit deponent who relies on information from another person to state the informant’s name and provide reasonable particulars concerning the informant, including the time and place of the information. Because paragraph 3 of Dana Airlines’ counter-affidavit omitted the time and place of the information allegedly supplied by counsel, it was incompetent. The trial court was therefore right not to attach probative value to that paragraph.

The court further held that the word “shall” in section 48(3) of the Civil Aviation Act is mandatory in the circumstances. Read together with Article 28 of the Montreal Convention, the provision commands an air carrier to make an advance payment of at least US$30,000 within 30 days of an aircraft accident resulting in death or injury. The payment is intended to meet the immediate economic needs of persons entitled to compensation and does not amount to an admission of liability. The carrier could not postpone its obligation indefinitely while waiting for the claimant to satisfy conditions not imposed by the statute.

Court Findings

The court approved the trial judge’s conclusion that Dana Airlines had breached the obligation owed to the first respondent by failing to make the payment within the statutory period. The legislative purpose was to provide prompt financial relief to bereaved families, and allowing the carrier to determine its own timetable would defeat that purpose. In interpreting legislation, the court must expound the law rather than expand or rewrite it, while reading related provisions together and giving clear statutory words their ordinary meaning.

On pre-judgment interest, the Court of Appeal restated that such interest is not automatically granted. It ordinarily must be specifically claimed, supported by appropriate pleadings, and established by credible evidence. Interest may, however, be awarded as of right where it is contemplated by agreement, arises from mercantile custom, or follows an equitable principle such as breach of fiduciary relationship. The first respondent had expressly claimed 21% interest in the writ and statement of claim and had led evidence in support. Since Dana Airlines wrongfully retained money that ought to have been paid promptly, the award of 21% pre-judgment interest was upheld.

The award of 10% post-judgment interest was also upheld. It fell within the authority conferred by Order 23 rule 5 of the Federal High Court (Civil Procedure) Rules 2009. The appellant failed to show that the trial judge exercised that discretion under a mistake of law, on a misunderstanding of the facts, or in a manner causing injustice.

The court nevertheless set aside the US$10,000 costs award. Although costs generally follow the event, they must be reasonable and compensatory rather than punitive or a bonus. The trial judge had improperly relied substantially on the engagement of an expensive consortium of lawyers, including Queen’s Counsel and senior advocates. The Court of Appeal substituted N100,000 as the costs of the application at the trial court and awarded N200,000 costs of the appeal to the first respondent.

Conclusion

The appeal was allowed in part. The decision of the Federal High Court delivered on 11 May 2015 in Suit No. FHC/L/CS/829/2014 was affirmed except for the US$10,000 costs award, which was set aside and replaced with N100,000. The statutory advance-payment obligation, the 21% pre-judgment interest and the 10% post-judgment interest remained effective.

Significance

The decision confirms that Nigerian aviation law imposes a prompt and mandatory humanitarian payment obligation on carriers after fatal aircraft accidents. It also illustrates the strict requirements for hearsay information in affidavits, the exceptional legal bases for pre-judgment interest, and the limited circumstances in which an appellate court will interfere with a trial court’s discretion. Importantly, the judgment warns that costs must reflect the justice and circumstances of the litigation, not the wealth of a party or the number and seniority of counsel engaged.