Aviation Liability

November 6, 2018
Aeroplane with wooden gavel and scales of justice. 3D rendering isolated on white background

Applicable 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  This Order was repealed by section 77 (1)(a) of the Civil Aviation Act  2006 (CAA 2006).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 domesti cated or incorporated into Nigerian law in compliance with Nigerian  constitutional 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  

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 provision 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 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 liabil ity arising for passenger injury or death as the question for 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.  

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. 

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 air craft. 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 associ 

ated 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 constitute ‘an occurrence’ was not considered and will there fore 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 com mon 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.  

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 mis conduct’ have been considered suggests the application of a subjective  standard in determining whether an act or omission will be consid ered as ‘wilful misconduct’. In the case of Harka Air Services (Nig) Ltd  v Keazor, the 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 ques tion 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’.  

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 CAA 2006 provides in section 48(3) that in the case of an air craft 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.  

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 arti cle 28 of Warsaw Convention has not arisen in the cases decided under  the 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. 

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’.  

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 

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 CAA 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 irrespective 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 car riage 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.  

12 What is the nature of, and 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. 

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 car rier 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. 

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. 

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.  

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 con 

sequently 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 dis 

cretionary 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 prin ciple 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 jurisdiction 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 find 

ing 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 contributory  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 circumstances of the case.

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 aris ing 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 com menced 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 limita tion 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 originating  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 

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 undertaken  in the Federal High Court) which is the court vested with jurisdiction to  hear aviation-related claims, stipulate procedures that enable a defend 

ant 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 of 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 but 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  which can result in a finding of liability of the third party to the defend ant 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.  

19 What time limits apply?  

Generally, a claim for indemnity or contribution is an equitable rem edy and most state statutes exempts a period of limitation for equitable  relief. 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  

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 body injury or wrongful  death will apply against an air carrier in claims for injury or damage  to persons on ground. Nigeria is not 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.  

21 What is the nature of, and 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 tor tious claim in negligence will apply.  

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. 

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 neg ligence; 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 

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. 

25 What is the nature of, and 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. 

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. 

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  defence will include that usually applicable in a tortious claim. 

Consumer protection and passenger rights  

28 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 CAA 2006 empowers the Nigerian Civil Aviation Authority  (NCAA) to make regulations ‘as to the conditions under which pas sengers 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 out side Nigeria to an airport in Nigeria unless the passengers received  compensation 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, can 

cellation 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 reasonable 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 con tains 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 

29 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 which 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 com mon law of tort. 

30 What is the nature of, and 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. 

31 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, how ever, that in Nigeria there is a time limitation within which a plaintiff  must commence an action against a public officer and in some certain  cases against particular government entities. Limitation periods in this  regard range from three months to 12 months. 

Criminal proceedings 

32 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 corporate  or unincorporate) and some Nigerian statutes impute criminal liabil ity 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 CAA 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. 

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

This is untested 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.  

34 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 car rier 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  

35 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 car riage 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 addition, 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, 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 

36 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 dam ages 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 recog nised under Nigerian law, which follows English law. Nigerian courts

cases have two elements: (i) that intended to compensate for financial  loss both present and future suffered by the plaintiff; and (ii) for non financial loss – which is usually subdivided into two, namely for pain  and suffering caused by the injury and for loss of amenities of life occa sioned by the deformity or impairment caused by the accident. Under  financial loss would be taken into consideration such matters as loss of  future earning capacity. Where the head of damages are not specific,  in which case, facts are not pleaded to justify the figures sought in the  action, the damages awarded are usually general damages, which are  discretionary and based on the judge’s assessment of the injury or dam 

age suffered. In line with the provisions of the Montreal Convention,  punitive, 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 their 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 real tor, that person should sign a written authority for that purpose, which  should be filed at the registry of the court.  

37 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 dam ages will be similar to those awarded by the courts in fatal accidents  claims and is usually calculated by: (i) first ascertaining the earnings of  the deceased before his or her death; and (ii) 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 precedents 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 administra tor 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, beneficiar ies include all the aforementioned persons as well as brothers and sis ters 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 Muslim law  for involuntary homicide’.  

The Federal High Court Rules empowers a court to appoint a per son to represent the estate of a deceased person where in the course of  the proceedings, it appears that any deceased person who was inter ested 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 

38 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 sec tion 29 of the CAA 2006.  

39 Set forth any restrictions on the disclosure and use of accident  reports, flight data recorder information of 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 apportion ing blame or liability. Section 29(14) further stipulates that the contents  

Update and trends 

The federal government of Nigeria has unveiled a new national  carrier called Nigeria Air. Nigeria Air is expected to start opera tions in December 2018. At the Farnborough Air Show in July 2018  in London, the government unveiled the airline’s logo and stated  its commitment to invest in this venture. The airline, which is to  be operated under a public-private partnership model, is billed to  create more jobs in the sector as it is expected that the airline will  operate about 40 domestic, regional and sub-regional and 41 inter national routes. 

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 inadmis sible. The appeal lodged against the subsequent judgment was discon 

tinued 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  admitted investigation report.  

The CAA 2006 does not contain any specific restriction on the  disclosure and use of flight data recorder information of cockpit voice  recording 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 particular 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. 

40 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 con stitute recognition of liability and may be set off against any amounts  subsequently paid as damages by the carrier. 

Insurance requirements  

41 Are there mandatory insurance requirements for air carriers? 

Yes, section 74 of the CAA 2006 provides that an air carrier operat ing 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 NCAA with evidence that  such insurance is maintained and that all conditions necessary to cre ate an obligation on the insurer to provide indemnity in the event of a  loss are fulfilled.  

Litigation procedure 

42 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 coun try-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 plaintiff lives 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 situ ate within the geographical sphere of the Federal High Court whose

decision is being appealed against and zoned to hear appeals emanat ing 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.  

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

Order 43 of the Federal High Court (Civil Procedure) Rules 2009 con tain provisions on discovery by interrogatories and discovery of docu ments. Interrogatories may be delivered after seven days of close of  pleadings stating the questions each party served with the interrogato ries are required to answer. For artificial entities with legal personality,  the interrogatories may be delivered to any member or officer of such  a party. The party served with the interrogatories may raise an objec tion in his or her affidavit filed in response to the interrogatories on the  ground that any questions contained in the interrogatories are scandal ous or irrelevant and the court considers the claims as contained in the  plaintiff ’s originating process in determining whether the interrogato ries 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 par 

ties 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.  

44 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. 

45 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  therefore 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 

46 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 inter 

est 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-judg ment interest using the average rates of interest charged by financial  institutions on loans granted to borrowers of funds.  

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. 

47 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.  

48 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 con tribution or indemnity from another person or entity. A defendant can  therefore pursue a claim against another person or entity.

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