Aviation Liability 2021

November 3, 2020

Major air law treaties 

1 To which major air law treaties related to carrier liability for  passenger injury or death is your state a party? 

The Warsaw Convention 1929 was extended to Nigeria by the British  colonial government via an order known as the Carriage by Air (Colonies,  Protectorates and Other Trust Territories) Order 1953. This Order was  repealed by section 77(1)(a) of the Civil Aviation Act 2006 (CAA 2006).  Prior to its repeal, the applicability of the Warsaw Convention as the  basis for determining air carrier liability was upheld in a plethora of  Nigerian cases. The Warsaw Convention has, however, ceased to apply  in Nigeria. 

In post-colonial Nigeria, international treaties are not directly  effective in Nigeria when they are signed or acceded to. The Nigerian  constitution requires the treaty to be incorporated into local law to make  it effective. 

Nigeria ratified or acceded to the Hague Protocol (1955) and the  Guadalajara Convention. However, these treaties were not domesticated  or incorporated into Nigerian law in compliance with Nigerian constitu tional requirements and are therefore not effective in Nigeria. 

Nigeria did not ratify or accede to the Montreal Protocols Nos. 1–4,  the Guatemala City Protocol (1971) and the Rome Convention (1952). Nigeria ratified the Montreal Convention (1999) and section 48(1)  of the CAA 2006 incorporated the Montreal Convention into Nigerian law  in compliance with Nigeria constitutional requirement. The Montreal  Convention is, therefore, effective in Nigeria. 

INTERNATIONAL CARRIAGE – LIABILITY FOR PASSENGER  INJURY OR DEATH 

Montreal Convention and Warsaw Convention 

2 Do the courts in your state interpret the similar provisions of  the Montreal Convention and the Warsaw Convention in the  same way? 

We are not aware of any decision of the superior courts of record in  Nigeria (the State and Federal High Courts, the Court of Appeal and  the Supreme Court) where the question of the liability for passenger  injury or death under the Montreal Convention regarding international  carriage have been decided. However, it is envisaged that when such  questions arise in the future, the courts will likely follow the interpreta 

tion of similar provisions decided under the earlier Warsaw Convention  because the Nigerian legal system recognises and applies the principle  of judicial precedent. 

3 Do the courts in your state consider the Montreal Convention  and Warsaw Convention to provide the sole or exclusive basis  for air carrier liability for passenger injury or death? 

Earlier cases decided under the Warsaw Convention did not provide a  definite position on the exclusivity of the Warsaw Convention for liability  arising for passenger injury or death as the question of exclusivity did  not arise in those cases. In the decisions involving other convention  claims (claims other than for passenger injury or death), the Supreme  Court and the Courts of Appeal in Nigeria have held that the Warsaw  Convention (which is the Convention upon which most of the cases are  based) should provide the sole basis for air carrier liability. It is envis aged that claims for passenger injury or death that will be considered  under the Montreal Convention will not depart from this position. 

Definition of ‘carrier’ 

4 In your state, who is considered to be a ‘carrier’ under

the  Montreal and Warsaw Conventions? 

Nigerian courts have not made a definitive consideration of who is a  ‘carrier’ under the Montreal or Warsaw Conventions. It is important to  note, however, that the first rule applied in Nigeria in interpreting stat utes is the literal rule (ie, that words should be given their literal and  ordinary meaning within the context of a statute). It is envisaged that the  court will apply the literal rule where it has to make a determination of  who is a ‘carrier’ under both Conventions. 

Carrier liability condition 

5 How do the courts in your state interpret the conditions for  air carrier liability – ‘accident’, ‘bodily injury’, ‘in the course  of any of the operations of embarking or disembarking’ – for  passenger injury or death in article 17(1) of the Montreal  Convention and article 17 of the Warsaw Convention? 

The questions of what constitutes ‘accident’, ‘bodily injury’, ‘in the course  of any of the operations of embarking or disembarking’ have not each  been specifically considered in the cases where carrier liability for  damages for death or passenger injury have been adjudicated on. In the  case of Harka Air Services (Nig) Ltd v Keazor, the plaintiff suffered bodily  injury on a domestic flight as a result of the crash-landing of the aircraft.  On further appeal to the Supreme Court, although the question of what  acts constitute an ‘accident’ was not in issue, the apex court seized the  opportunity and defined ‘accident’ as ‘an occurrence associated with the  operation of an aircraft which takes place between the time any person  boards an aircraft with the intention of flight until such time as all such  persons have disembarked in which a person suffers a fatal or serious  injury as a result of being in the aircraft’. The question of what will consti tute ‘an occurrence’ was not considered and will therefore be determined  as more cases dealing with the issue are decided by the courts. 

The concept of what will be considered as ‘serious injury’ as it  relates to the applicability of article 17 of the Montreal Convention is yet  to be determined by Nigerian courts. Given that Nigeria has a common  law background, the courts will look to see how other common law  countries have decided the question and this will provide persuasive  authority whenever the court is called upon to determine the question. 

No negligence defence 

6 How do the courts in your state interpret and apply the ‘no  negligence’ defence in article 21 of the Montreal Convention,  and the ‘all reasonable measures’ defence in article 20 and  the ‘wilful misconduct’ standard of article 25 of the Warsaw  Convention? 

The ambit of articles 21 and 20 of the Montreal Convention have not yet  been tested in the Nigerian courts. 

However, the court decisions where the question of ‘wilful miscon duct’ has been considered suggest the application of a subjective  standard in determining whether an act or omission will be considered  as ‘wilful misconduct’. In the case of Harka Air Services (Nig) Ltd v  Keazor, the apex court upheld the findings of a Federal High Court and  the Court of Appeal that the airline was guilty of wilful misconduct for  taking off for flight during bad weather. The Supreme Court upheld the  necessity for the existence of the mental element in allegations of wilful  misconduct and opined that the court, in determining the question of  wilful misconduct ‘is not entitled to attribute to one pilot, the knowledge  which another pilot has in assessing whether the first pilot is or is not  guilty of wilful misconduct’. 

Advance payment for injury or death 

7 Does your state require that advance payment be made  to injured passengers or the family members of deceased  passengers following an aircraft accident? 

Yes, the Civil Aviation Act 2006 provides in section 48(3) that in the case  of an aircraft accident resulting in death or injury of passengers a carrier  should make advance payments of at least US$30,000 to the natural  person or such natural persons who are entitled to claim compensation  in order to assist such people to meet immediate economic needs. Such  advance payments do not constitute recognition of liability and may be  set off against any sums subsequently paid as damages by the carrier. 

Deciding jurisdiction 

8 How do the courts of your state interpret each of the  jurisdictions set forth in article 33 of the Montreal Convention  and article 28 of the Warsaw Convention? 

Nigerian courts have not considered the question of jurisdiction for  airline liability under article 33 of the Montreal Convention and article  28 of Warsaw Convention. However, in general litigation practice before  the courts, the doctrine of forum non conveniens is recognised by the  Nigerian courts and the courts will consider the circumstances of each  particular case in recognising or refusing to recognise a particular  jurisdiction. 

Period of limitation 

9 How do the courts of your state interpret and apply the  two-year period of limitations in article 35 of the Montreal  Convention and article 29 of the Warsaw Convention? 

Case law on the two-year limitation period stipulated in article 29(1) of  the Warsaw Convention has been applied strictly. In one of the cases  decided in the Court of Appeal, the Court stated that ‘the limitation  

period laid down in article 29(1) cannot be suspended or interrupted,  even by agreement of the parties’. 

Liability of carriage 

10 How do the courts of your state address the liability of  carriage performed by a person other than the contracting  carrier under the Montreal and Warsaw Conventions? 

The questions relating to liability for code-share and similar arrange ments have not arisen in the Nigerian courts. 

DOMESTIC CARRIAGE – LIABILITY FOR PASSENGER INJURY  OR DEATH 

Governing laws 

11 What laws in your state govern the liability of an air carrier  for passenger injury or death occurring during domestic  carriage? 

Section 48(2) of the Civil Aviation Act 2006 provides that the Montreal  Convention as modified and set out in the third schedule to the Act,  as amended from time to time, will from the

commencement of the  Act have the force of law and apply to non-international carriage irre 

spective of the nationality of the aircraft performing the carriage. The  modified Convention will, subject to the provisions of the Act, govern  the rights and liabilities of carriers, passengers, consignors, consignees  and other persons. 

Some of the terms modified in the text applicable to domestic  carriage include: 

  • the monetary limit for injury and death is specifically indicated in  the text of articles 21 and 22 in US dollars ($100,000); 
  • stipulating a seven-year timeline for the review of the limits; and • providing for advance payment of US$30,000 for injury and death of  passengers under article 28. 

Nature of carrier liability 

12 What is the nature of, and what are the conditions for, an air  carrier’s liability? 

An air carrier’s liability under domestic carriage is as stipulated in  the modified version of the Montreal Convention made applicable to  domestic carriage. It is based on the ‘strict liability’ of the carrier and  subject to the terms of the Montreal Convention regarding exoneration  and limitation of limits of liability. 

Liability limits 

13 Is there any limit of a carrier’s liability for personal injury or  death? 

For death or injury of passengers, the monetary limit for which the carrier  shall not be able to exclude or limit its liability is set at US$100,000 –  article 21 of the Montreal Convention as modified. It is envisaged that  the courts will uphold this limit subject to the ability of a plaintiff to  rebut the defences open to the carrier in article 21(2). 

We are unaware of any liability limits for personal injury or death  incorporated by notice or contractual agreement. 

Main defences 

14 What are the main defences available to the air carrier? 

The defences available to the air carrier are the defences set out in the  Montreal Convention. With respect to personal injury or death, the two  main defences available to the carrier are: the defence that the damage

was not due to the negligence or other wrongful act of the carrier or its  servants or agents and the defence that the damage was solely due to  the negligence or other wrongful act or omission of a third party. 

Damages 

15 Is the air carrier’s liability for damages joint and several? 

The air carrier liability for passenger injury or death under the modified  version of the Montreal Convention is as circumscribed in articles 17  and 21 and a plaintiff’s claim against the air carrier for damages in this  regard must come squarely under the Convention. The liability is not  joint and several. 

Rule for apportioning fault 

16 What rule do the courts in your state apply to apportioning  fault when the injury or death was caused in whole or in part  by the person claiming compensation or the person from  whom the right is derived? 

The question of contributory negligence for air carrier liability has not  yet been considered before the Nigerian courts. However, under general  law in Nigeria, the effect of a successful plea of contributory negligence  is the apportionment of blame between the parties and consequently  an apportionment of liability. We are not aware of any case in which the  doctrine of comparative negligence has been considered and applied  in Nigeria. 

There are no statutory provisions that specifically set out principles  for courts to adhere to in apportioning fault or the damages recoverable  where there has been a successful plea of the defence of contributory  negligence. Case law suggests that it is within the ambit of a court’s  discretionary powers, which must be exercised judicially and judiciously  in line with the evidence led before the court. In a specific case for  recovery of damages for injury caused to a motor cyclist by a vehicle,  the trial court found that the accident was caused by the negligence of  the motor cyclist but proceeded to apportion the damages between the  plaintiff and the defendant. The Supreme Court overruled the decision  and held that the defendant ought not to pay any damages given the  finding that the plaintiff was solely liable. 

There is a dearth of Nigerian case law on the application of the  principle of contributory negligence to minors and persons with reduced  mental capacity. In line with the practice of Nigerian courts to look to  decisions of other common law jurisdictions as persuasive authority  on undecided issues, these decisions will provide some direction as  to how these questions will be decided. For children, a review of case  law in England suggests that the age of the child is a key factor in any  finding whether the child is or is not liable for contributorily negligence.  As suggested in Fleming v Kerry County Council, there must be some  age up to which the child cannot be guilty of contributory negligence. In  other words, there is some age up to which a child cannot be expected to  take any precautions for his or her own safety. In cases where contribu tory negligence is alleged against a child, it is the duty of the trial judge  to rule, in each particular case, whether the plaintiff, having regard to  his or her age and mental development, may properly be expected to  take some precautions for his or her own safety and consequently be  capable of being guilty of contributory negligence. Having ruled in the  affirmative, it becomes a question of fact for the jury, on the evidence, to  determine whether he or she has fallen short of the standard that might  reasonably be expected from him or her having regard to his or her age  and development. In the case of an ordinary adult person, the standard  is what should be expected from a reasonable person. In the case of a  child, the standard is what may reasonably be expected, having regard  to the age and mental development of the child and the other circum stances of the case. 

Statute of limitations 

17 What is the time within which an action against an air carrier for injury or death must be filed? 

An action against an air carrier for injury or death must be filed within  the two-year limitation period stipulated in article 35 of the Montreal  Convention. The cases determined under the Warsaw Convention in  Nigeria recognised and upheld the time limit set in article 29 of the  Warsaw Convention and it is envisaged that question on limitation  arising under the Montreal Convention will follow the precedent laid  down in these cases. The time limit is not subject to tolling. 

In Nigeria, an action is deemed to have been instituted or  commenced against a party on the date the originating process is

filed  in court. In this regard, for the purpose of determining whether the  action was commenced within the time limit stipulated under any limi 

tation law, the courts will usually look at the pleadings of the plaintiff  to ascertain the date of the accrual of the cause of action as averred  by the plaintiff and compare that with the date of the filing of the origi nating process. If the time between these two periods is more than the  period limited for bringing the action before the courts, the suit is held  to be statute barred and will be dismissed. 

THIRD-PARTY ACTIONS 

Seeking recovery 

18 What are the applicable procedures to seek recovery from  another party for contribution or indemnity? 

Order 9 Rules 17–25 of the Federal High Court Rules (the rules that  stipulate procedural conditions and requirements for cases under taken in the Federal High Court), which is the court vested with  jurisdiction to hear aviation-related claims, stipulate procedures that  enable a defendant to join a third party for contribution or indemnity  in a suit against the defendant. The defendant may, where he or she  conceives that he or she is entitled to contribution or indemnity from  a third party seek leave via an ex parte application or a summons on  notice from the court to issue a third-party notice. The court may give  leave to the defendant to issue a third-party notice upon such ex parte  application or upon the hearing of a summons filed and served on the  plaintiff. 

Where the court grants leave for the issuance of the third-party  notice, the notice is served on the third party within the time limited  for the delivery of defence (30 days) or reply (14 days) where there is  a counterclaim. All other originating processes (statement of claim,  writ of summons and any other pleading filed in the suit) are also  served on the third party, who from the time of the service on him or  her of these processes become a party in the suit with the same rights  in respect of his or her defence against any claim made against the  third party. 

A third party duly served with the court processes who defaults  in entering an appearance or filing any pleadings will be deemed to  admit any claim stated in the third-party notice and will be bound by  the judgment given in the action. Where a contribution or indemnity is  claimed in the third-party notice, the third party is deemed to admit the  liability in respect of the contribution or indemnity and the defendant  is entitled to ask a court to enter judgment against the third party to  the extent of any contribution or indemnity claimed in the third-party  notice after satisfaction of the judgment against him or herself or with  leave of court, before satisfaction of the judgment. 

The rules also stipulate that the defendant may seek ‘third-party  directions’ that entail a consideration of the third-party application and  that can result in a finding of liability of the third party to the defendant  before any judgment is entered in favour of the plaintiff against the

defendant in the suit. Third-party liability may also be decided after  the trial of the suit and a judge may enter such judgment for or against  any of the parties or between them as the nature of the case requires. 

Time limits 

19 What time limits apply? 

Generally, a claim for indemnity or contribution is an equitable remedy  and most state statutes exempt a period of limitation for equitable  reliefs. There are no specific statutory provisions on a limitation  period in respect of a claim for indemnity or contribution for aviation 

related claims. 

LIABILITY FOR GROUND DAMAGE 

Applicable laws 

20 What laws apply to the liability of the air carrier for injury  or damage caused to persons on the ground by an aircraft  accident? 

The common law claims available in tort for bodily injury or wrongful  death will apply against an air carrier in claims for injury or damage  to persons on the ground. Nigeria is not a signatory to the Convention  on Damage Caused by Foreign Aircraft to Third Parties on the Surface  signed in Rome in 1952. There is no specific statute specifying liability  for air carriers for damages caused to third parties on the ground. 

Nature and conditions of liability 

21 What is the nature of, and what are the conditions for, an air  carrier’s liability for ground damage? 

The liability of air carriers for ground damage is governed by common  law. It is fault-based and the general principles of establishing a tortious  claim in negligence will apply. 

Liability limits 

22 Is there any limit of carriers’ liability for ground damage? 

There is no limit to carrier’s liability for ground damage. Damages are  at large where liability is established for ground damage. Recoverable  damages are, however, subject to the rules applicable in determining  the quantum of damages in each case. 

Main defences 

23 What are the main defences available to the air carrier in a  claim for damage caused on the ground? 

Available defences will include defences available to a defendant in a  negligence claim. This will include the defence of contributory negli gence; volenti non fit injuria; inevitable accident; statutory defence such  as limitation of action; and the doctrine of necessity. 

LIABILITY FOR UNRULY PASSENGERS AND TERRORIST  EVENTS 

Applicable laws 

24 What laws apply to the liability of the air carrier for injury or  death caused by an unruly passenger or a terrorist event? 

There are no statutes creating a separate liability regime for injury or  death of a passenger caused by an unruly passenger or a terrorist event  and no case law involving injury and death of passenger has considered  this question. It is possible that arguments will be raised on the strict  

liability of an air carrier under the Montreal Convention and the ques tions will revolve on whether the event that caused the injury or death  is an ‘accident’ within the contemplation of the Convention as well as  the application of the defences available to

the air carrier in such cases. 

Nature and conditions of liability 

25 What is the nature of, and what are the conditions for, an  air carrier’s liability for injury or death caused by an unruly  passenger or a terrorist event? 

This issue is yet to be considered and decided by Nigerian courts. 

Liability limits 

26 Is there any limit of liability for injury or death caused by an  unruly passenger or a terrorist event? 

This issue is yet to be considered and decided by Nigerian courts. 

Main defences 

27 What are the main defences available to the air carrier in a  claim for injury or death caused by an unruly passenger or a  terrorist event? 

If the air carrier is sued under the Montreal Convention, then the main  defences available to the air carrier in this case will be all the defences  available under the Montreal Convention. Where, however, the air  carrier is joined in a suit against the unruly passenger, the available  defences will be those usually applicable in a tortious claim. 

LIABILITY FOR HARM CAUSED BY DRONES 

Applicable legislation 

28 Summarise the laws or regulations related to the liability for  injuries or damage caused by drones. 

There are currently no laws or regulations that provide for liability for  injuries or damage caused by drones in Nigeria. In the absence of any  such legal regime, the principles governing liability in general negli gence claims will apply to determine liability for injuries or damage  caused by drones. 

CONSUMER PROTECTION AND PASSENGER RIGHTS 

Applicable legislation 

29 Summarise aviation-related consumer-protection laws or  regulations related to passengers with reduced mobility,  flight delays and overbooking, tarmac delay and other  relevant areas. 

The Civil Aviation Act 2006 empowers the Nigerian Civil Aviation Authority  (NCAA) to make regulations ‘as to the conditions under which passen gers and goods may be carried by air’. Regulation 19 issued by the NCAA  deals with consumer protection and covers issues such as no-show,  

overbooking, denied boarding, long delay and flight cancellation. Regulation 19 is largely modelled on EU Regulation No. 261/2004,  which deals with compensation and assistance to passengers in the  event of denied boarding, flight cancellations or long delays of flights.  Its sphere of applicability is for carriage of passengers between two  airports within Nigeria; carriage of passengers from an airport outside  Nigeria to an airport in Nigeria unless the passengers received compen sation or assistance at the point of departure in the case of a Nigerian  air carrier and non-stop flight segments originating at a point in Nigeria  (foreign air transportation). 

Regulation 19.10.1 stipulates that an air carrier, when starting  the boarding of an oversold flight, should give priority to persons with  reduced mobility, unaccompanied minors and families (two adults)  where at least one child is under five. In the case of long delay, cancel 

lation or denied boarding, the carrier should provide to persons with  reduced mobility the assistance provided in the regulation, which  includes a meal, transport between the airport and place of accommo dation (hotel or other accommodation), refreshment, accommodation  and free calls, SMS or email. 

The regulation also stipulates certain obligations of air carriers to  passengers for delay. For domestic flights, the carrier is expected to  provide the following assistance to passengers where it is anticipated  that a scheduled flight will be delayed: 

  • a delay of up to 1 hour – refreshment, telephone call, SMS or email; • two hours and beyond – reimbursement; and 
  • between 10pm and 4am – hotel accommodation, meal and trans port plus refreshment, free calls, SMS or email. 

For international flights: 

  • two to four hours – refreshment, telephone call, SMS or email; and • four hours or more – hotel accommodation, meal and transport  between the airport and place of accommodation (hotel or other  accommodation) plus refreshment, free calls, SMS or email. 

When the reasonably expected time of departure is at least six hours  after the time of departure previously announced, the carrier should  provide hotel accommodation and transport to and from the airport. 

There is no provision for ‘tarmac delay’. Regulation 19 also contains  provisions for assistance and compensation for denied boarding and  cancellation and is the only aviation-related consumer protection law. 

LIABILITY OF GOVERNMENT ENTITIES PROVIDING SERVICES  TO CARRIERS 

Relevant laws 

30 What laws apply to the liability of the government entities  that provide services to the air carrier? 

The Nigerian Airspace Management Agency (NAMA) and the Federal  Airports Authority of Nigeria (FAAN) are the two government entities  that provide services to air carriers. NAMA provides air traffic control  services while FAAN provides airport services. Both NAMA and FAAN  are creatures of statutes that imbue them with legal personality, and  they can be sued for acts or omissions arising from the performance of  their statutory roles. Other than actions in breach of a statutory obliga tion, these statutory agencies may be liable for damages occasioned  by their negligence or the negligence of their officials under general  common law of tort. 

Nature and conditions of liability 

31 What is the nature of, and what are the conditions for, the  government’s liability? 

Whether the claim is made pursuant to a statute or under general tort  law, the liability of the government entity is fault-based, and evidence  must be led by the plaintiff with facts that establish the liability of  such entity. 

Most legislation that establish the statutory entities operating

in  the aviation sector in Nigeria have provisions that require a notice of  claim prior to the institution of an action against such an entity or their  employees and other officers or joining such persons in an already  existing action. This notice is referred to as a ‘pre-action notice’ and the  Nigerian courts have consistently upheld the necessity of the issuance  of a pre-action notice as a condition precedent to the institution of an  

action. For NAMA, the pre-action notice is to be issued to a member of  the board, the managing director, officer or employee of the agency and  is one month’s notice, while for FAAN it is a three-month notice to be  issued to the Authority. 

Liability limits 

32 Are there any limitations to seeking recovery from the  government entity? 

No, there are no limitations such as immunity or public policy that seek  to curtail the right of a passenger from seeking recovery from relevant  aviation government entities. It is important to know, however, that in  Nigeria there is a time limitation within which a plaintiff must commence  an action against a public officer and in some cases against particular  government entities. Limitation periods in this regard range from three  months to 12 months. 

CRIMINAL PROCEEDINGS 

Responsibility for accidents 

33 Can an air carrier be criminally responsible for an aviation  accident? 

The law on criminal liability of corporate entities is unclear and it is,  therefore, not improbable that an air carrier will be held criminally  responsible for an aviation accident. The question of criminal liability  of an air carrier has, however, not been decided by the Nigerian courts. 

The Criminal Code, which establishes the bulk of criminal offences  in Nigeria, does not make any distinction between liability of persons as  individuals or persons as corporate entities (the Nigerian Interpretation  Act defines the word ‘person’ to include any body of persons corpo 

rate or unincorporate) and some Nigerian statutes impute criminal  liability on a company in certain circumstances. In the few cases where  a company has been found to be criminally liable, knowledge has been  imputed to the company for acts by its officers done with knowledge or  perceived knowledge that liability is likely to arise. The Civil Aviation Act  2006 also creates offences such as dangerous flying and endangering  safety, destroying or damaging an aircraft in flight. In such instances, it  is the individual involved who is criminally liable. 

Effect of proceedings 

34 What is the effect of criminal proceedings against the  air carrier on a civil action by the passenger or their  representatives? 

This has not been tested in Nigeria. Any allegation of a crime in a civil  suit has the same standard of proof – which is proof beyond reasonable  doubt – as that required to ensure a conviction of the same charge in a  criminal action. 

Compensation 

35 Can claims for compensation by passengers or their  representatives be made against the air carrier through the  criminal proceedings? 

No, all claims by passengers or their representatives against the air  carrier for compensation are to be made via the provisions of the  Montreal Convention in a separate civil suit. 

EFFECT OF CARRIER’S CONDITIONS OF CARRIAGE AND  TARIFFS 

Liability 

36 What is the legal effect of a carrier’s conditions of carriage or  tariffs on the carrier’s liability? 

Most domestic airlines in Nigeria incorporate their conditions of carriage  into the contract with the passenger and these conditions form part of  the contract of carriage that the court can consider and enforce in claims  involving any issue covered in the said conditions of carriage. In addi 

tion, some tariffs may be subject to certain terms and conditions and to  the extent that a passenger is informed of the said terms and conditions,  such a passenger will be held to be bound by them within general legal  limits. Other than these scenarios, neither the conditions of carriage nor  the tariffs affect the carrier’s liability under the Montreal Convention. 

DAMAGES 

Damage recovery 

37 What damages are recoverable for the personal injury of a  passenger? 

The measure of damages recoverable for bodily injury is as set down  by a plethora of case law from negligence claims. Several heads of  damages can be awarded in personal injury cases and these include: • loss of earnings; 

  • loss of the amenities of life; 
  • pain and suffering; 
  • nervous shock; and 
  • medical expenses. 

These are the general types of damages recognised under Nigerian law,  which follows English law. Nigerian courts recognise that the damages  awarded to a plaintiff in personal injury cases have two elements: • that intended to compensate for financial loss both present and  future suffered by the plaintiff; and 

  • that intended to compensate for non-financial loss – which is  usually subdivided into two, namely pain and suffering caused by  the injury and loss of amenities of life occasioned by the deformity  or impairment caused by the accident. 

Financial loss would take into consideration such matters as loss of  future earning capacity. Where the heads of damages are not specific,  and facts are not pleaded to justify the figures sought in

the action,  the damages awarded are usually general damages, which are discre 

tionary and based on the judge’s assessment of the injury or damage  suffered. In line with the provisions of the Montreal Convention, puni tive, exemplary or any other non-compensatory damages will not be  recoverable. 

For personal injury claims, the person who has the standing to sue  is the injured passenger. If the passenger is a minor or person with any  legal disability, the action can be filed by the victim’s guardian or next  of kin. The rules of court, however, stipulate that before the name of a  person is used in an action as next friend of an infant or other party, or  as realtor, that person should sign a written authority for that purpose,  which should be filed at the registry of the court. 

38 What damages are recoverable for the death of a passenger? 

Where the accident results in death, an action is brought on behalf  of the immediate family by virtue of the provisions contained in the  Fatal Accidents Law of several states in Nigeria. Here, the recoverable  

damages will be similar to those awarded by the courts in fatal acci dents claims and are usually calculated by: 

  • first ascertaining the earnings of the deceased before his or her  death; and 
  • deducting an amount that the deceased would normally have spent  on him or herself for his or her personal needs from the first amount. 

There is no statute that prescribes a definite percentage of what can be  deducted as likely expenditure by the deceased on him or herself and the  courts will likely consider the evidence brought before it as well as prec edents set in other common law jurisdictions such as England. Punitive  damages are not allowed. 

The action is brought for the benefit of the immediate family of the  deceased passenger by and in the name of the executor or administrator  of the deceased person (where the deceased person is not subject to a  system of customary law). Where the deceased person was prior to his  or her death subject to a system of customary law as regards estates,  the action will be brought by a person, who the court is satisfied is  entitled to bring such an action under customary law on behalf of the  deceased person. 

Immediate family includes, for a person not subject to customary  law – wife or wives, husbands, as the case may be, parent and any child.  For persons subject to customary law who are non-Muslims, benefi ciaries include all the aforementioned persons as well as brothers and  sisters of the deceased and includes step-brothers and step-sisters.  Lastly, for Muslims subject to customary law, immediate family means  the ‘person entitled to share in the award of diya prescribed by Islamic  law for involuntary homicide’. 

The Federal High Court Rules empowers a court to appoint a person  to represent the estate of a deceased person where in the course of the  proceedings, it appears that any deceased person who was interested  in the proceedings has no legal representative. Any order made in such  proceedings, which will include a recovery against an air carrier, is  binding on the estate of the deceased. 

ACCIDENT INVESTIGATION AND FAMILY ASSISTANCE 

Investigatory authority 

39 Who is responsible in your state for investigating aviation accidents? 

The entity responsible for investigating aviation accidents and serious  incidents is the Accident Investigation Bureau established under section  29 of the Civil Aviation Act 2006 (CAA 2006). 

Disclosure restrictions 

40 Set forth any restrictions on the disclosure and use of accident reports, flight data recorder information or cockpit voice  recordings in litigation. 

Pursuant to section 29(12) of the CAA 2006, the sole objective of the  investigation of an accident or serious incident under the Act is for the  prevention of future occurrences and not for the purpose of apportioning  blame or liability. Section 29(14) further stipulates that the contents of an  accident investigation report will not be admissible as a basis of liability  in any civil or criminal court proceedings. We are, however, aware of  a case where an airline sued the airport authority for damages on the  destruction of their aircraft. The presiding judge admitted the accident  investigation report despite the argument that it was inadmissible. The  appeal lodged against the subsequent judgment was discontinued when  the parties settled the dispute and the Court of Appeal did not have the  opportunity to pronounce on the issue of the legality of the admission of  the investigation report. 

The CAA 2006 does not contain any specific restriction on the  disclosure and use of flight data recorder information or cockpit voice  recordings in litigation. Section 6 of the Civil Aviation (Investigation of  Accidents) Regulations stipulates the persons who shall have access  to an aircraft involved in an accident (police officers or officers of the  Nigeria Customs Service). Pursuant to section 8 of the Civil Aviation  (Investigation of Accidents) Regulations, the Inspector of Accidents who  investigates any accident has powers to examine any aircraft and for  that purpose may require any aircraft part or equipment to be preserved  and unaltered pending examination. The question of the availability of  such flight data recorder information being available to a litigant is still  untested in the Nigerian courts. 

Relevant post-accident assistance laws 

41 Does your state have any laws or regulations addressing the  provision of assistance to passengers and their family after  an aviation accident? 

Section 48(3) of the CAA 2006 provides that in the event of the death or  injury of passengers from an aircraft accident, the carrier should make  advance payment of at least US$30,000 to the natural person or such  natural persons who are entitled to claim compensation within 30 days  from the date of such accident. This is to aid such person or persons  to meet immediate economic needs. Such advance payments do not  constitute recognition of liability and may be set off against any amounts  subsequently paid as damages by the carrier. 

INSURANCE REQUIREMENTS 

Mandatory requirements 

42 Are there mandatory insurance requirements for air carriers? 

Yes, section 74 of the CAA 2006 provides that an air carrier operating air  transport services to, from and within Nigeria should maintain adequate  insurance covering its liability under the CAA. 

The carrier is expected to provide quarterly returns to the Nigerian Civil Aviation Authority  with evidence that such insurance is maintained and that all conditions  necessary to create an obligation on the insurer to provide indemnity in  the event of a loss are fulfilled. 

LITIGATION PROCEDURE 

Court structure 

43 Provide a brief overview of the court structure as it relates to  civil aviation liability claims and appeals. 

The court of first instance with jurisdiction to hear aviation liability  claims is the Federal High Court. The Federal High Court has country wide jurisdiction with judicial divisions in the different states that make  up the Nigerian Federation. Therefore, a plaintiff can sue the air carrier  in the Federal High Court situated within the jurisdiction where the  defendant resides or carries on business or in the Federal High Court  situate at the place where the cause of action arose. 

Any appeal arising from an interlocutory or final decision of the  Federal High Court is heard and determined by a Court of Appeal situate  within the geographical sphere of the Federal High Court whose deci sion is being appealed against and zoned to hear appeals emanating  from the judicial division of the particular Federal High Court. 

A further appeal from an interlocutory or final decision of the Court  of Appeal is determined by the Supreme Court. The Supreme Court is  the court of last resort and there are no further rights of appeal. The  Supreme Court of Nigeria is located in the Federal Capital Territory of  Abuja, the nation’s capital. 

Allowable discovery 

44 What is the nature and extent of allowable discovery/ disclosure? 

Order 43 of the Federal High Court (Civil Procedure) Rules 2019 contain  provisions on discovery by interrogatories and discovery of documents.  Interrogatories may be delivered after seven days of close of pleadings  stating the questions each party served with the interrogatories are  required to answer. For artificial entities with legal personality, the inter 

rogatories may be delivered to any member or officer of such a party.  The party served with the interrogatories may raise an objection in his  or her affidavit filed in response to the interrogatories on the ground  that any questions contained in the interrogatories are scandalous or  irrelevant and the court considers the claims as contained in the plain 

tiff’s originating process in determining whether the interrogatories are  scandalous or irrelevant. 

Where a party served with interrogatories omits to answer a ques tion or answers insufficiently, the court will, on an application, issue an  order requiring him or her to answer or provide further responses, as  the case may be. 

The rules also contain provisions that entitle a party to deliver a  request to another party to make discovery on oath of documents that  are or have been in his or her possession, custody, power or control.  The documents should relate to matters in question between the  parties and the party served with the request is to answer ‘completely  and truthfully’. The affidavit should contain the documents requested  except where the party objects to the production of any document. The  court has the discretion to refuse to order discovery if satisfied that the  documents requested are not necessary for the effectual disposal of the  case. The court may also limit the discovery to certain classes of docu ments that the court considers fit for the hearing of the claim. 

Evidence 

45 Does the law of your state provide for any rules regarding  preservation and spoliation of evidence? 

Some Nigerian statutes contain provisions regarding preservation of  documentary evidence for a certain number of years but there are no  rules regarding the spoliation of evidence. 

Recoverability of fees and costs 

46 Are attorneys’ fees and litigation costs recoverable? 

Some case law in Nigeria have opined that an award of attorneys’ fees is  unethical and have stated that it is an affront to public policy to pass on  the burden of attorneys’ fees to the other party. Nigerian courts there fore do not ordinarily grant a claim by a plaintiff for legal fees to be  paid to his or her solicitors. In a recent decision, the Court of Appeal in  Nigeria held that a claim for attorneys’ fees, which does not form part  of the claimant’s cause of action, is not one that can be granted and that  to succeed on such a claim it must be specifically pleaded as special  damages and must be proved by credible and cogent evidence. It there 

fore appears that if reimbursement of attorneys’ fees were pre-agreed  and formed part of damages suffered by a plaintiff prior to the institu tion of the suit, the courts may likely allow the recovery of the fees. 

Litigation costs are usually granted as nominal costs and amounts,  at the discretion of the courts. 

JUDGMENTS AND SETTLEMENT 

Pre- and post-judgment interest 

47 Does your state impose pre-judgment or post-judgment  

interest? What is the rate and how is it calculated? 

The courts recognise that pre-judgment interests can arise under a  

contract, statute or by virtue of some mercantile usage. Where pre judgment interest is contractual or statutory, the contract or statute  will usually stipulate the rate that will apply or provide the manner  in which such interest will be calculated and the court will apply such  agreed interest rate. One statute that provides for interest on monies  is the Investment and Securities Act 2007, which

stipulates that the  Commission established under the Act may prescribe the rate of interest  payable on such monies, but further stipulates that such interest should  not be less than 1 per cent above the Central Bank of Nigeria minimum  rediscount rate. It is usual for claimants to seek for pre-judgment  interest using the average rates of interest charged by financial institu 

tions on loans granted to borrowers of funds. Prejudgment interest can  also be awarded under a principle of equity such as the existence of a  fiduciary relationship. In the absence of a contract, statute, mercantile  trade or fiduciary relationship providing for or justifying prejudgment  interest, the courts will not award prejudgment interest. 

Post-judgment interest is usually awarded by the courts pursuant  to court rules that permit the award of such an interest. An example is  Order 23 Rule 5 of the Federal High Court (Civil Procedure) Rules, which  empowers a judge to order interest at any rate not exceeding 10 per  cent per annum to be paid on any judgment. 

Settlements 

48 Is court approval required for settlements? 

Where a claim is already pending before a court, it is usual for parties to  have the agreed terms of settlement adopted as judgment of the court.  These types of judgments are known in Nigeria as ‘consent judgments’  and the parties to such a consent judgment cannot subsequently appeal  the judgment without the leave of court. 

Parties opt to have their settlements approved by the courts as this  provides a legal basis for any future contention between the parties on  the agreed terms. However, court approval is not a mandatory require ment for settlements either for already pending claims or claims that  have not been brought before the courts. 

49 What is the effect of a settlement on the right to seek  contribution or indemnity from another person or entity? Can  it still be pursued? 

A settlement between parties does not foreclose the right to seek contri bution or indemnity from another person or entity. A defendant can  therefore pursue a claim against another person or entity. 

50 Are there any financial sanctions, laws or regulations in your  state that must be considered before an air carrier or its  insurer may pay a judgment or settlement? 

No financial sanctions apply on an air carrier or insurer on the payment  of a judgment or settlement. There are also no laws and regulations to  be considered by air carriers or insurers before payment on a judgment  or settlement may be made. 

Etigwe Uwa SAN 

etigwe@sskohn.com 

Chinasa Unaegbunam 

chinasa@sskohn.com 

Omolayo Latunji 

omolayo@sskohn.com 

Agbada S Agbada  

agbada@sskohn.com 

16D Akin Olugbade Street 

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Lagos 

Nigeria 

Tel: +234 1 271 2276 / +234 1 271 3846 

Fax: +234 1 271 2277 

www.sskohn.com 

UPDATE AND TRENDS 

Key developments of the past year 

51 What were the key cases, decisions, judgments and policy and  legislative developments of the past year? 

In the past year, the Civil Aviation Bill 2019 (CA Bill) and the Nigeria  Safety Investigation Bureau (Establishment etc) Bill 2019 (NSIB Bill)  were introduced at the National Assembly, seeking to amend the Civil  Aviation Act 2006 and create a statutory body to be known as the Nigeria  Safety Investigation Bureau (NSIB) to replace the Accident Investigation  Bureau (AIB). The CA Bill proposes to, among other things: 

  • provide for express liability for damages caused to persons on the  ground by an aircraft whilst taking off or landing or by anything  falling from an aircraft; 
  • empower the Nigerian Civil Aviation Authority (NCAA) to ground  any aircraft and to seal the premises of any air transport service  provider or provider of allied aviation services and to take any  corrective actions in order to implement the findings of accidents  and incidents investigations; 
  • provide for criminal liability for failing to make or keep or damaging  or altering reports, accounts, records and memoranda that may  impact safety and for interfering with true lights, signals or commu nications for air navigation; and 
  • provide for criminal liability for endangering safety of or causing  damage to an aircraft in flight and endangering safety of or  causing damage to an international airport or aircraft at an inter national airport. 

The NSIB Bill seeks to vest the powers to investigate accidents and  serious incidents in the NSIB. The NSIB will have wide discretionary  powers of investigation, issue reports and make recommendations  where necessary. As with the AIB which it succeeds, the investigative  reports will not be admissible in court as evidence. 

If passed into law, the foregoing Bills will have recognisable impact  on aviation liability in Nigeria. 

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