Aviation

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Before Their Lordships

OLUKAYODE ARIWOOLA - Justice of the Supreme Court of Nigeria

JOHN INYANG OKORO - Justice of the Supreme Court of Nigeria

AMINA ADAMU AUGIE - Justice of the Supreme Court of Nigeria

ABDU ABOKI - Justice of the Supreme Court of Nigeria

EMMANUEL AKOMAYE AGIM - Justice of the Supreme Court of Nigeria

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Between

DR. OLASENI ADESINA - Appellant

And

AIR FRANCE - Respondent

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JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Lagos Division delivered on the 21st day of May, 2013 which affirmed the decision of the Federal High Court, Lagos Division delivered on 14th January, 2011 wherein it was held that the Appellant herein (who was the Applicant at the trial Court) did not make out a case for the reliefs he sought, thereby dismissing the Application.

A brief facts giving birth to this appeal as gleaned from the record shows that by notice of motion dated 23rd February, 2010 brought pursuant to Order 2 Rule 1 (1) of the Fundamental Rights (Enforcement Procedure) Rules 1979, as prescribed by Section 315 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Section 34, 35 and 36 thereof, and under the inherent jurisdiction of the Federal High Court, the Appellant as applicant sought an order of the Court for the enforcement of his fundamental rights to dignity of human person, personal liberty and fair hearing in terms of the relief sought in the statement accompanying the affidavit in support of the application which has reliefs as follows:-

"(1) A DECLARATION that the parade of the Applicant in handcuffs before other passengers while on board the Air France Flight from Charles De Gaulle Airport, Paris, France to Murtala Mohammed Airport Lagos, Nigeria on June 17, 2007 is illegal and unconstitutional as it violates the Applicant's fundamental right to dignity and fair hearing as guaranteed under Sections 34 and 36 of the 1999 Constitution of the Federal Republic of Nigeria.

(2) A DECLARATION that the forceful transportation of the Applicant from Charles De Gaulle Airport, Paris, France to Murtala Mohammed Airport, Lagos, Nigeria on June 17, 2007 is illegal and unconstitutional as it violates the Appellant's right to personal liberty guaranteed by Section 35 of the 199 Constitution of the Federal Republic of Nigeria.

(3) AN ORDER that the sum of $100,000,000.00 (One Hundred Million Dollars) be awarded as damages to the Applicant for the infringement of his rights to dignity of human person, personal liberty and fair hearing."

In support of the application, the Appellant filed a 25 paragraphs affidavit deposed to by him. The application was in compliance with the Rules, supported by a statement of facts as to the name and description of 'the Applicant and the Grounds for seeking the reliefs.

The Respondent filed a counter affidavit in response to the motion on Notice which was deposed to by Tunde Oyebanji (Mrs), Legal Practitioner in the law firm of Usman & Elema (solicitors). Parties also filed their respective addresses in support of their processes.

At the trial Court, the Appellant alleged that he was forced into an aircraft belonging to the Respondent by the French Immigration Security men on the 17th of June, 2007 and deported to Nigeria against his will. That the French Immigration Security Officers had bought a flight ticket in the name of the Appellant from the Respondent, obtained a boarding pass in the name of the Appellant on seat No. 41E and accompanied him to Lagos with Immigration Security Officers, one sitting on the Appellant's right and the other to his left in the aircraft.

When the aircraft arrived the Murtala Mohammed International Airport, Lagos, the Appellant was handed over to the Nigerian Immigration Officials by the French Immigration Officials. It is the grouse of the Appellant that the Respondent was wrong to have allowed the Appellant on board the Respondent's aircraft without a deportation order.

The Appellant also alleged that he was beaten up by the French Immigration Officials before he was bundled into the aircraft. He was handcuffed and chained throughout the flight by the French Immigration Officials.

The Respondent denies any role in the deportation of the Appellant, because it is a private business concern and not an agent of the French Immigration Service.

The learned trial Judge, having perused the fact deposed to in the respective affidavits evidence before him, and the addresses filed by both parties, dismissed the application for lacking in merit.

Piqued by the decision of the Trial Federal High Court, the appellant filed an appeal at the Court below which dismissed the Appellant's appeal. The appellant has further appealed to this Court. Judgment of the lower Court was delivered on 21st May, 2013 while Notice of Appeal was filed on 19th June, 2015. The said Notice of Appeal contains eight grounds of appeal out of which the Appellant has distilled four issues for determination. Briefs of argument were filed and exchanged and on 30th November, 2021 when this appeal was heard, learned counsel for both parties identified and adopted their respective briefs.

In the brief of argument filed and signed by Funmi Falana (Mrs) on 11th October, 2017 but adopted at the hearing by Femi Falana, SAN, the four issues formulated for determination are as follows:-

1. Whether it was not the Respondent who was responsible for the breach of the fundamental right of the Applicant.

2. Whether the transportation of the Appellant to Nigeria by the Respondent is not illegal as it did not demand and sight a deportation order before admitting the Appellant on board its aircraft and transporting him to Nigeria.

3. Whether the lower Court was right when it rejected the evidence that the Appellant was handcuffed and leg chained while on board the flight from Paris to Lagos.

4. Whether the liability of the Respondent to the Appellant is limited to the provision of Article 17 of the Montreal Convention of 1999 as embodied in the Civil Aviation Act, 2006.

The Respondent's brief was settled by U. I. Egonu, Esq and led by S. E. Elema, SAN, at the hearing. In the said brief, three issues are distilled for determination as follows:-

1. Whether the Respondent can be held liable for alleged breach of the Appellant's fundamental rights.

2. Whether the burden of proof on the Appellant was discharged and shifted to the Respondent all through the hearing.

3. Whether the Appellant is entitled to recover damages against the Respondent.

In the determination of this appeal, I propose to be guided by the four issues donated by the Appellant. I shall however resolve issues 1, 2 and 3 together and issue four separately, if need be.

ISSUES 1, 2 AND 3

In arguing the first issue, the learned senior counsel for the Appellant submitted that it is clear from the reliefs sought by the Appellant that the deportation of the Appellant from France to Nigeria was not the subject matter of this suit, and that the Appellant did not challenge the decision of the French Immigration Authorities to deport him but the violation of his fundamental rights which occurred during the flight from Paris to Lagos. It is the contention of the Appellant that his fundamental rights were violated by the Respondent. That the Constitution of the Federal Republic of Nigeria, 1999 in Sections 34, 35 and 36 and Articles 5 and 7 of the African Charter on Human and Peoples' Rights confer upon the Appellant fundamental rights to dignity, liberty and fair hearing. He contends that these rights are to be respected by the Respondent as long as the Appellant remained in its Aircraft.

It was further contended by the learned Silk that Sections 48 and 49 of the Civil Aviation Act 2006 (part xiii) place a duty on a carrier of an airline to its passengers and customers against injury on board an aircraft in the course of a journey or in the course of preparing for actual conduct of flight operation. Learned SAN referred to Compendium of Laws under the Nigerian Legal System (second Edition) W. I. J. by Abubakar Sadigu Ogwuche, page 167.

Learned senior counsel opined that although the rights guaranteed by the Constitution are not absolute as they can be derogated from in accordance with instances permitted by law, in the instant case, it is the case of the Appellant that the violation of his rights to dignity, liberty and fair hearing cannot be justified under any law.

It was learned counsel's further submission that the French Immigration Authorities could not have transported the Appellant to Nigeria without the connivance of the Respondent who admitted him on board despite his protest. That the failure of the Respondent to check the travel documents of the Appellant is a violation of Articles 3 - 8 of the Civil Aviation Act which require the possession of valid documents before a passenger can be transported by any airline. According to the learned Silk the transportation of the Applicant/Appellant from France to Nigeria cannot be justified in law.

On the second issue, the learned Silk submitted that the forceful transportation of the Appellant from France to Nigeria without a deportation order violated his fundamental rights to personal liberty, fair hearing and freedom of movement guaranteed by Section 35, 36 and 38 of the Constitution and Articles 6, 7 and 12 of the African Charter on Human and Peoples' Rights.

Referring to paragraph 13 of the Respondent's counter affidavit he submitted that it offends the provision of Section 115 of the Evidence Act as Mrs. Tunde Oyebanji, a legal practitioner who made the deposition was not in the plane, she did not witness the event and so she could not have known what happened in the plane. The learned SAN further submitted that the said paragraph 13 of the counter affidavit offends Section 86 and 89 of the Evidence Act. It is his argument that the deposition in paragraph 13 of the Respondent's counter affidavit did not state the source of its information and it also contains legal arguments and conclusion and therefore should not be relied upon by Court; referring to Pharmacist Board of Nigeria v Adegbosote (1986) S NWLR (pt.44) 707.

Furthermore, the learned Silk submitted that it is common knowledge that an airline would always insist on sighting a valid Visa before the sale of a travel ticket and subsequent issuance of a boarding pass to an immigrant. That it is also compelling on it to insist on sighting relevant deportation documents before the issuance and/or sale of a travelling ticket and boarding pass. Learned SAN concluded that having not produced any deportation order authorizing the expulsion of the Appellant from France, the Respondent ought not to have sold ticket or issued a boarding pass for the Appellant in the circumstance. That the Respondent has not proffered any legal basis for the transportation of the Appellant from France to Nigeria.

In respect of issue three, learned SAN submitted that in an action for enforcement of fundamental rights, affidavit evidence is used and that where it is uncontroverted, the Court is bound to accept and rely on same, relying on Isitor v Ikararode (2008) 1 NWLR (pt.1069) 62, Kosile v Folarin (1989) 3 NWLR (pt.107) 1, NBA v Chris Ekemezie (2008) 12 NWLR (pt.1100) 326, SPDC Nig. Ltd. v Lucky Esowe (2008) 4 NWLR (pt.1070) 72.

It is learned Silk's contention that the Appellant's deposition that he was handcuffed and leg chained during the flight from France to Nigeria was not controverted by the Respondent. That Respondent's attempt in paragraph 9 of its counter affidavit to deny responsibility is like Pontius Pilate washing his hands after he slapped the Lord Jesus. He urged the Court to hold that Mrs. Tunde Oyebanji's depositions were hearsay and ought not to be relied upon, referring again to Pharmacist Boarding of Nigeria v Adegbosote (supra), Also refers to Fashawe v AGF & Ors (2008) EFCL page 199. The learned SAN then urged this Court to resolve the three issues in favour of the Appellant.

In the respondent's argument, the three issues argued by the Appellant above, are encapsulated in its first issue and argued accordingly. First, on the submission that there was no deportation order given to the Respondent by the French Immigration Officials, the learned counsel for the Respondent submitted that the Appellant canvassed this same argument at the trial Court but when requested by the said Court to supply the reference of the law or the judicial authority to support this argument, the Appellant's counsel failed to supply any. He stressed that the same trend was repeated at the Court below and even in this Court. That both at the Court below and in this Court, the Appellant failed to refer to or support the argument with any law or judicial authority. He opined that the Appellant, having accepted that the French Immigration Service Officers purchased a flight ticket in the name of the respondent and obtained a boarding pass accordingly, it is save to conclude that the Respondent had the necessary documents to carry the Appellant.

It was further contended that even if the Immigration Officers did not purchase any ticket, the Respondent will not be liable in view of the provisions of Article 51 of the Montreal Convention 1999.

Again, in the allegation of handcuffing and leg chaining the Appellant in the course of the flight, learned counsel submitted that though the lower Court found this allegation as not proven by the Appellant, the truth is that the Appellant did not allege that the Respondent or any of its officials or crew members carried out or assisted in carrying out the alleged handcuffing and leg chaining of the Appellant. Learned counsel submitted that an aggrieved party must bring before the Court a party who committed the act which is the subject matter of the grievance and not someone else. And on what constitutes a cause of action, learned counsel referred to the cases of Julius Nduka v Edwin Ogbonna (2011) 1 NWLR (pt.1227) 153, Savage v Uwaechi (1972) 3 SC 214, Ibrahim v Osim (1988) 3 NWLR (pt.82) 257.

As regards physical injury on the appellant, learned counsel submitted and urged the Court to note that the allegation of physical beating and injury on the Appellant was made against French Immigration Officials and not against the Respondent or its officials and was made outside the aircraft if at all. That no allegation that the Respondent or any of its officials participated in the alleged beating or aided or abetted it in any way. It was contended that none of the essential requirements of Article 17 of Montreal Convention dealing with damages for physical injury is present in the instant case, referring to Harka Air Services Ltd. v Keazor (2011) 13 NWLR (pt.1264) 320. Learned counsel submitted that there is no evidence that the Respondent either physically or remotely injured the Appellant's person, rights, reputation or property.

On issue of breach of fundamental right of the Appellant, learned counsel submitted that a breach of fundamental right postulates a blatant abuse to one's dignity, person and honour. That any allegation of such a nature, must be direct and not one that admits conjecture, suspicion or insinuations. He submitted further that there is nothing to show from the facts deposed to by the Appellant that the Respondent was directly involved in the arrest, alleged manhandling, alleged beating and deportation of the Appellant, that neither did the Appellant prove that it was indeed the Respondent's crew member(s) on board the aircraft on the said day that were involved in the dehumanizing of the Appellant in the course of the flight to Nigeria. That the burden of proof was on the Appellant, relying on Re Amolegbe (2014) 8 NWLR (pt. 1408) 76.

According to learned counsel, in so far as the rights of the Appellant have not been violated by the Respondent, the issue of damages in whatsoever form cannot be considered by this Court because, damages can only flow where there is a breach, citing Bilante Int'l Ltd v NDIC (2011) 15 NWLR (pt. 1270) 407. Learned counsel urged this Court to resolve these issues against the Appellant.

RESOLUTION

In resolving the three issues, I propose to consider whether there was a cause of action which enabled the Appellant to sue the Respondent in the first instance. The reason is that the Appellant has posed in his first issue the question whether it was not the Respondent who was responsible for the breach of the fundamental right of the Applicant, now Appellant. This is much more so since both the trial Court and the Court below held that the Appellant had no cause of action against the Respondent. I shall briefly examine this principle.

A cause of action has been defined as a fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief. Put differently, a cause of action is that fact or facts that give rise to a claim that can be enforced in a Court of law and this leads to the right to sue a person responsible for the existence either directly or by extension of such circumstances. There must in essence be, a wrongful act of a party i.e. the party sued which has injured or given the plaintiff reason to complain in a Court of law for remedy and the consequent damage to the party aggrieved. See Egbe v Adefarasin (1987) 1 NWLR (pt. 47) page 1, Ovie v Ighivvi (2005) 5 NWLR (pt. 917) 184, Ibrahim v Osim (1988) 3 NWLR (pt. 82) 251,

I need to further emphasize that the cause of action of a plaintiff is the factual situation or a combination of facts or acts relied upon by him as entitling him to a remedy against the defendant in a Court of law. See Adekoya v Federal Housing Authority (2008) 11 NWLR (pt 1099) 539, Ransome-Kuti v Attorney General of the Federation (1985) 2 NWLR (pt. 6) 211, Savage v Uwechia (1972) 3 SC 71, Amodu v Amode & Anor (1990) 5 NWLR (pt. 150) 356.

It has to be noted that the plaintiff cannot sue at large even where there exists a cause of action. It is the act on the point of the defendant and another person which gives the plaintiff his cause of action against the said defendant. In other words, a plaintiff cannot be allowed to use a set of facts giving him a right to sue to pursue an innocent passers-by. He must sue the person who caused him injury and not another. See P. N. Udoh Trading Company Ltd v Abere & Anor (2001) 11 NWLR (pr. 723) 114

In the instant case, the learned senior counsel for the Appellant had submitted in paragraph 4.06, page 4 of their brief of argument that from the reliefs sought by the Appellant, the deportation of the Appellant from France to Nigeria was not the subject matter of this suit and neither did the Appellant challenge the decision of the French Immigration Authorities to deport him, but the violation of his fundamental rights which occurred during the flight from Paris to Lagos. That is the contention of the Appellant that his fundamental rights were violated by the Respondent. With due respect to the learned senior counsel for the Appellant, I have perused the entire record but I am unable to see any act of the Respondent which breached the fundamental right of the Appellant. All the Appellant had placed before the trial Court is that he was arrested by French Immigration Officials who bought air ticket and obtained boarding pass and flew him to Nigeria among other passengers. He alleged also that he was manhandled, handcuffed and leg chained by the Immigration Officials. The two Courts below had held that the cause of action (if any) inures to the appellant against French Immigration Officials and not the Respondent who is not alleged to have done anything wrong other than carrying the Appellant in its aircraft. No wonder the Court below made the following conclusions on page 73 of the record of appeal thus:-

"A breach of fundamental right postulates a blatant abuse to one's dignity, person and honour. Allegation of such must be directed pointedly and is not one that admits of conjecture, suspicion or day dreaming. There is nothing to show that it was the Respondent that handcuffed the Appellant. There is nothing to show that the Respondent dehumanized the Appellant on board, in the course of the flight to Nigeria."

And on page 75 of the said record, the Court below further held emphatically that the cause of action did not accrue against the Respondent. It states:-

"It is curious that the Appellant brought no suit against the French Immigration Service. I wonder whether there is any factual situation necessitating bringing the Respondent to Court. He was not a proper party and to institute the suit against him at all was erroneous and sufficient to divest the lower Court of the necessary jurisdiction to entertain the case. Indeed the lower Court should have struck out the application for misjoinder of a party. There is nothing to show that any of the Respondent's crew participated in beating up the Appellant (if at all).

I do not hesitate to state unequivocally that this issue is one that should be resolved in favour of the Respondent and against the Appellant as I hold that the Respondent was not responsible for any breach of the fundamental right of the Appellant."

The above conclusions by the Court below reechoed the position taken by the learned trial Judge. I declare that this position and/or decision is unassailable. I think this is a case of transferred aggression. The evidence as can be garnered from the affidavit in support of the Application at the trial Court clearly shows that it was the French Immigration Officials who arrested and removed the Appellant from France to Nigeria. The Respondent, as a commercial Airline operator, in my opinion did no wrong in accepting a passenger like any other and flew him to Nigeria. It is from the Appellant that the Immigration Officials bought his air ticket and even obtained a boarding pass before he boarded the aircraft. I am unable to see my way through any offence allegedly committed by the Respondent. The Appellant failed to pointedly show any act of the airline staff which breached his fundamental right other than carry him in their aircraft. As I observed earlier, the Appellant stated in paragraph 4.06 of his brief of argument that he has not, in this case, challenged the decision of the French Immigration Authorities to deport him. But all the abuses complained of were said to have been accentuated by the Airline or any member of its staff. The Appellant in this case is behaving like the proverbial chicken which turned its neck from the person who slaughtered it to the person merely removing the feathers.

Like the two Courts below, I see no cause of action in this matter against the Respondent. If any, the Appellant sued the wrong person. I agree with the Court below that this suit ought to have been struck out for lack of jurisdiction by the trial Court.

In issue two, the Appellant raised the argument that failure of the Respondent to demand and sight a deportation order before admitting him on board its aircraft and transporting him to Nigeria made it culpable. This same argument was canvassed at the Court below yet unsuccessfully. The Court below held as follows on page 75 of the record:-

"It is trite that he who asserts must prove. The Appellant in my view, as rightly observed by the learned trial Judge, did not provide any legal provision to satisfy the Court that the Respondent had the legal duty to sight and to demand a deportation order before it can assume responsibility of receiving a deportee from a deporting authority."

Having made the argument on failure of the Respondent to sight deportation order before carrying the Appellant and gotten the same outcome from the two Courts below, one would have expected the Appellant to strengthen that argument with some legal authorities (if any), hopefully, it may sway the mind of this Court to his advantage. Alas, there is not such reference. It seems to me that the argument does not fly at all. Notwithstanding, it has to be noted that the carriage of the Appellant by the Respondent was not entirely ordinary. Although the Appellant had argued in his brief that he did not quarrel about his deportation by the French Immigration Officials, he did not travel in the normal course of travelling. He was being forcefully removed from France to Nigeria. That being the case, I am of the view that Article 51 of the Montreal Convention, 1999 applies. The said Article 51 provides:-

"The provisions of Articles 3 to 5, 7 and 8 relating to the documentation of carriage shall not apply in the case of carriage performed in extraordinary circumstances outside the normal scope of a carrier's business"

The above provision envisages a period of emergency or of an extraordinary event in which it becomes necessary and inevitable for an aircraft to take off without undue legalism, probably to save lives and/or escape any danger. I agree with the two Courts below that on the strength of Article 51 of the Montreal Convention 1999, the carriage of the Appellant in the Respondent's aircraft was an extraordinary event, occurring outside the normal passenger/carrier contract. I cannot see any element of collusion as the Appellant would want this Court to hold. It is my conclusion that the Appellant failed to convince the Court how failure to sight a deportation document made the Respondent culpable and/or liable in the circumstance.

The third issue of the Appellant is that the Court below was wrong to have rejected the evidence that the Appellant was handcuffed and leg chained while on board the flight from Paris to Lagos. I have read the affidavit evidence of the Appellant in support of his application at the trial Court and I am unable to find where he pointedly accused the Respondent or any of its officials for handcuffing or leg chaining him. Rather everything points to the two French Immigration Officials. All the Appellant said is that the Airline Officials failed to question the Immigration officials for handcuffing him. Learned senior counsel for the Appellant had challenged the deposition by one Tunde Oyebanji (Mrs), legal Practitioner in the law firm of the Respondent's solicitors for containing legal argument, conclusions and opinions. I have read the said paragraph 9 of the counter affidavit and it States:-

"…The allegation of maltreatment by French Security Officials had nothing to do with the Respondent as the Appellant did not allege that he was in any way maltreated by Respondent flight Crew or officials."

The above paragraph of the counter affidavit, in my candid opinion, is merely telling the Appellant that from his depositions, he did not pointedly accuse the Respondent's flight crew or officials for maltreating him either by beating or handcuff or leg chain. There is nothing extraneous about the said paragraph of the affidavit. It was not an argument. But was the appellant able to prove that he was handcuffed or leg chained by the Respondent or its officials? The law is trite that he who asserts or alleges must prove under the Evidence Act, 2011 at Section 131. It states that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts he asserts, must prove that those facts exist.

It is not enough for a party to make an allegation before a Court; he must lead credible evidence to prove same. See Ukeje & Anor v Ukeje (2014) 11 NWLR (pt 1318) 384, Union Bank Plc v Astra Builders (WA) Ltd (2010) 5 NWLR (pt. 1185) 1, Imana v Robinson (1979) 3 - 4 SC 1.

My Lords, I agree with the learned counsel for the Respondent when he asserted that the Appellant did not allege that the Respondent or any of its officials or crew members carried out or assisted in carrying out the alleged handcuffing and leg chaining of the Appellant. In paragraph 4 of the affidavit in support of his application for enforcement of his fundamental rights, the Appellant stated that he protested against being taken into the aircraft and that the officials of the French Immigration Service reacted by beating him and forcing him into the aircraft. If there is an identified breach of Appellant's right (if at all), it should be the French Immigration Officials. Definitely not the Respondent. It is trite law that an aggrieved party must bring before the Court a party who committed the act which is the subject matter of the grievance and not someone else. This, the Appellant failed to do. In simple terms, the appellant sued the wrong party in this case.

On allegation of physical injury, apart from the fact that the appellant failed to pointedly show the person who injured him and what injury he sustained, Article 17 of the Montreal Convention deals with compensation or damages for physical injury sustained in the course of an aviation travel. It provides:-

"The carrier of liable for damage sustained in case of death or bodily injury of a passenger upon condition, only that the accident which caused the death or injury took place on board the aircraft or in the course of the operation of embarking or disembarking."

Three essential ingredients can be deducible from the above provision before a party is entitled to compensation. These are:-

1. There must have been an injury

2. The injury must have arisen as a result of an accident

3. The accident must have occurred either in the course of the flight or in the process of embarkation or disembarkation.

See Harka Air Services Ltd v Keazor (2011) 3 NWLR (pt. 1264) 320.

From the facts of this case, none of the essential requirements of the said Article 17 is present in the present case. At page 84 of the record, the Court below held as follows:-

"But, as I had consistently held, there is no evidence to show that the Respondent inflicted any injury on the Appellant. Neither did he do so to his rights, reputation or property. There is nothing to show that the Respondent invaded any legally protected interest of the Appellant, either outside the Aircraft of the Respondent, out of the county or within the country Nigeria, or inside the carrier for that matter. Issue of damages can only flow where there is a breach."

I totally agree with the above conclusion of the Court below. What this means is that Appellant's issues 1, 2 and 3 are resolved against him.

Having resolved issues 1, 2 and 3 against the Appellant, particularly that he failed to prove that Respondent breached any of his rights, it becomes academic to consider issue 4 as to whether the liability of the Respondent to the Appellant is limited to the provision of Article 17 of the Montreal Convention 1999 and embodied in the Civil Aviation Act 2006. Having adjudged the Respondent not to have been the proper party in this case, it does not make sense to consider the damages to be awarded against it. Accordingly, issue four is hereby discountenanced.

On the whole, having resolved the salient issues in this appeal against the Appellant, I hold that this appeal is devoid of any scintilla of merit and is accordingly dismissed. I shall make no order as to costs.

Appeal Dismissed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead judgment of my learned brother John Inyang Okoro, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment that the appeal is unmeritorious and deserves to be dismissed. Accordingly, it is dismissed by me.

Appeal dismissed.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Okoro, JSC, and I agree with him that this Appeal lacks merit. The Appellant alleged that he was kidnapped and deported from France without due process; that no deportation order authorizing his expulsion was shown to the captain; and that while on board the Respondent's aircraft, he was handcuffed, his legs were chained, he was seated between two Officers, and he was not served any meal, while the infringement of his rights continued throughout the flight. The trial Court, after an evaluation of the evidence before it, found as follows:

- The Respondent was not responsible for the arrest and torture of the Appellant.

- Article 51 of the Montreal Convention, 1999, provides for incomplete documentation in "extraordinary circumstances outside the normal scope of a carrier's business", a provision that absolves the Respondent. The Appellant did not show the Court any contrary provision establishing the liability of the Respondent on the lack of a deportation order.

- The Appellant did not show that the Respondent, its staff, and crew inflicted any injuries on him during the flight.

- There is nothing to show or suggest it was the Respondent that had the Appellant in cuffs.

- It was curious that the Appellant brought no Suit against the French Immigration Service, who should be the proper party in the Suit.

The trial Court held that the Appellant was not entitled to the reliefs sought and dismissed the said Application. The Appellant appealed to the Court of Appeal, which dismissed the Appeal and affirmed the decision of the trial Court. He filed a Notice of Appeal in this Court, which contains eight Grounds of Appeal, and he formulated the following Issues for Determination in his Brief of Argument:

1. Whether it was not the Respondent who was responsible for the breach of the fundamental rights of the Appellant.

2. Whether the transportation of the Appellant to Nigeria by the Respondent is not illegal as it did not demand and sight a deportation order before admitting Appellant on board its aircraft and transporting him to Nigeria.

3. Whether the lower Court was right when it rejected the evidence that [he] was handcuffed and leg chained while in the flight from Paris to Lagos.

4. Whether the liability of the Respondent to the Appellant is limited to the provisions of Article 17 of the Montreal Convention, 1999, as embodied in the Civil Aviation Act, 2006.

Basically, the Appellant contends that his fundamental rights were violated by the Respondent. He submitted that his deportation from France to Nigeria was not the subject matter of his Suit, neither is he challenging the decision of the French Immigration Authorities to deport him. But, as my learned brother said, it was the French Immigration Officials, who arrested the Appellant and moved him from France to Nigeria. There is no evidence of any wrongdoing on the part of the Respondent, who merely accepted him and the French Immigration Officials, on board its flight from Paris to Lagos, like any other passengers. So, the two lower Courts were right that the Respondent was not a proper Party, and that the Appellant ought to have sued the said French Immigration Service.

It is trite that only proper Parties can invoke the jurisdiction of the Court. So, "for an action to succeed, the Parties to it must be shown to be the proper Parties to whom rights and obligations arising from the cause of action attach" - see Ehidimhen V. Musa (2000) 8 NWLR (Pt. 669) 540 SC. In other words, it is only a proper Party that can sue and be sued, and it is only that Party that can be bound by the outcome of the proceedings. What is more, it is the facts of the case that determines the proper Parties to the Suit. In this case, it is clear from the Affidavit in support of the Application that the Respondent was not the proper Party to be sued by the Appellant for the alleged violation of his rights.

It is for this and the other well-expressed reasons in the lead judgment that I also dismiss this Appeal for lacking in merit. I make no order as to costs.

ABDU ABOKI, J.S.C.: I had the privilege of reading before now, a draft copy of the lead judgment written by my learned brother, JOHN INYANG OKORO, JSC I am in concert with His Lordship that the appeal is devoid of merit and should be dismissed. In support of my stance with the reasoning and conclusion arrived thereat by His Lordship, I add a few words.

The appeal is against the judgment of the Court of Appeal, holden at Lagos, delivered on the 21st day of May, 2013, wherein the Appellant's application for the enforcement of his fundamental rights to dignity and personal liberty, was dismissed.

The summary of facts is that the Appellant was the Applicant at the Federal High Court, sitting in Lagos. By a Motion on Notice dated the 23rd of February, 2010, the he commenced this action against the Respondent, seeking the following reliefs:

1. A DECLARATION that the parade of the Applicant in handcuffs before other passengers while on board the Air France flight from Charles De Gaulle Airport, Paris France, to Murtala Mohammed Airport, Lagos, Nigeria on June 17, 2007 is illegal and unconstitutional and violates the Applicant's fundamental rights to dignity and fair hearing as guaranteed under Sections 34 and 36 of the 1999 Constitution of the Federal Republic of Nigeria.

2. A DECLARATION that the forceful transportation of the Applicant from Charles De Gaulle Airport, Paris, France to Murtala Mohammed Airport, Lagos, Nigeria on June 17, 2007 is illegal and unconstitutional as it violates the Applicant's right to personal liberty guaranteed by Section 35 of the 1999 Constitution of the Federal Republic of Nigeria.

3. AN ORDER that the sum $100,000,000.00 (One Hundred Million Dollars) be awarded as damages to the Applicant for the infringement of his rights to dignity of the human person, personal liberty and fair hearing.

Affidavits, counter affidavits and written addresses were filed by parties on both sides, and in its decision, the trial Court dismissed Appellant's application.

Dissatisfied with the decision of the trial Court, the Appellant appealed, albeit unsuccessfully to the Court below.

The Appellant was still aggrieved and lodged an appeal at the Registry of this Court. In his brief of argument, the Appellant asked the following questions:

1. Whether it was not the Respondent who was responsible for the breach of the fundamental rights of the Applicant?

2. Whether the transportation of the Appellant to Nigeria by the Respondent is not illegal as it did not demand and sight a deportation order before admitting the Appellant on board its aircraft and transporting him to Nigeria?

3. Whether the lower Court was right when it rejected the evidence that the Appellant was handcuffed and leg chained while on board the flight from Paris to Lagos?

4. Whether the liability of the Respondent to the Appellant is limited to the provision of Article 17 of the Montreal Convention of 1999 as embodied in the Civil Aviation Act, 2006?

For the Respondent, the following three issues were tabled before this Court. They are:

1. Whether the Respondent can be held liable for alleged breach of the Appellant's fundamental rights?

2. Whether the burden of proof on the Appellant was discharged and shifted to the Respondent all through the hearing?

3. Whether the Appellant is entitled to recover damages against the Respondent

From the affidavit evidence adduced at the trial, it is obvious that the Appellant's claim against the Respondent is misconceived. According to the Appellant, on June 17 2007, four plain clothes French Security Official manhandled him and pushed him into a waiting Air France plane in Lyon, to Nigeria. He said he was molested and beaten by the French officials.

At Paragraph 4 of the affidavit in support of his application, he deposed thus:

"4. That I protested not to enter the Aircraft of Air France which caused the French officials to brutally kick me, twist my neck, strangulate my throat, tie my feet together with my belt and hauled me flatly into the waiting Air France plane."

In response to the above, the Respondent at Paragraph 9 of its counter affidavit stated thus:

"9. That the allegation of maltreatment by French Security officials had nothing to do with the Respondent as the Applicant did not allege that he was in any way maltreated by the Respondent's flight crew or officials."

In reply to the above, the Appellant at Paragraphs 8 and 9 of his Reply to the Respondent's counter affidavit deposed thus:

"8. With respect to Paragraph 8, 9, and 14 of the counter affidavit, the Respondent directly violated my fundamental rights, apart from acting as the Respondent's agent in the said violations.

9. The Respondent colluded with the French Security Officials to deny me of my right to freedom of movement, personal liberty, fair hearing and dignity."

It is apparent from all the above that the Appellant had admitted on the deposed facts that it was the French officials, who brutally manhandled him. He made no allegations against the Respondent. All he said was that the French Security Officials were acting as agents of the Respondent.

There is nothing before the Court to lend credence to the Appellant's allegations that the Respondent colluded with the French authorities and infringed on the Appellant's fundamental rights. In the first instance, the allegation of physical beating and injury was made against the French Immigration Service officials and not against the Respondent. Secondly, the alleged beating took place outside the Respondent's aircraft, before the Appellant boarded the Respondent's Aircraft. Third, there was no allegation that the Respondent or any of its Officials participated in the alleged beating, or aided and abetted it in any way.

The settled position of the law is that a party seeking declaratory reliefs must establish his entitlement to the reliefs upon the strength of his own case.

In Nduul v. Wayo & Ors (2018) LPELR-45151 SC, this Court held that:

"Where a claimant seeks declaratory reliefs, the burden is on him to prove his entitlement to those reliefs on the strength of his own case. A declaratory relief will not be granted, even on admission. The Claimant is also not entitled to rely on the weakness of the defence, if any. It has been held that the rationale for this position of the law is that a claim for declaratory reliefs calls for the exercise of the Court's discretionary powers in favour of the claimant. He must therefore place sufficient material before the Court to enable it exercise such discretion in his favour."

In the instant appeal, Reliefs 1 and 2 of the Appellant's Motion on Notice reproduced earlier, are declaratory. The 3rd Relief is ancillary to the declaratory reliefs. The burden was therefore on the Appellant to satisfy the Court that he was entitled to those reliefs, notwithstanding any perceived weakness of the defence. This burden, in my view, was not discharged by the Appellant.

I therefore agree with the Court below, where at Page 73 of the Record, it held inter alia:

"There is nothing to show that it was the Respondent that handcuffed the Appellant. There is nothing to show that it was the Respondent who arrested the Appellant. There is nothing to show that the Respondent dehumanized the Appellant on board, in the course of the flight to Nigeria."

The consequence of the above is that I concur with the conclusion of my learned brother, JOHN INYANG OKORO, JSC that this appeal is unmeritorious. It is hereby dismissed.

I abide by all the consequential orders made in the lead judgment.

Appeal Dismissed.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice JOHN INYANG OKORO, JSC. I agree with the reasoning, conclusions and decision therein.

This case has raised the now oft recurring question of the role commercial air carriers play or are expected to play during deportation when they provide seats in their commercial flights to detainees and security officials accompanying them on the flight. This question arises where as in this case it is contended that the air carrier is complicit in the violation of the rights of the deportee by security officials in the aircraft during flight. In my view, the answer to this question would depend on whether it provided seats for the deportee and security officials to help the enforcement of the deportation or it sold the seats to the security officials in the ordinary course of its business as a commercial air carrier. Where the air carriage is to help the deportation, the air carrier becomes part and parcel of the deportation process and may be jointly liable for any violations of the right of the deportee in the aircraft during flight. Where the air carrier provided the seats in the air craft to the security officials in the ordinary course of its commercial air carriage business, it would be difficult to find it complicit in the restrictions on the rights of the deportee by the security officials, in the absence of any overt acts of the officials of the commercial air carrier that violate the rights of the deportee or in the absence of other willful misconduct or default that results in the violation of the rights of the deportee.

In this case, there is no evidence that the respondent cooperated with or had an arrangement with the French Security officials to assist them in deporting the appellant to Nigeria and that the air carriage of the security officials and the appellant was in furtherance of that cooperation or arrangement. Rather, the evidence establish that the security officials paid for seats for the appellant and themselves on one of the regular commercial flights of the respondent from Lyon in France to Lagos in Nigeria.

The appellant's case is that while the French security officials were violating his fundamental rights during embarkation by forcing him to enter the aircraft and chaining his legs and handcuffing his hands throughout the flight, the officials of the respondent did not stop them or show their disapproval of their ill- treatment of the appellant on the aircraft. I do not think that this omission or failure by the officials of the respondent is enough to make the respondent complicit in the actions of the security officials that had custody of the appellant before entering the aircraft and throughout the flight. It is obvious that the respondent's officials understood the appellant's deportation as a legitimate legal process. This suit is not challenging the legality of the deportation. It merely contends that the respondent has a role to play as an air carrier of the deportee and the security officials, which role is to demand to be shown the deportation instrument or order and ensure that it is a legitimate process and not a kidnap or some other crime being carried out under the guise of a legal process of deportation, using the innocent air carrier to effect the commission of the crime. This is a valid contention in the light of contemporary experiences. But the appellant himself has shown that it was a legitimate legal process by his deposition that on arrival in Lagos Nigeria, French security officials handed him over to the Nigerian Immigration officials at Murtala Mohammed Airport Lagos.

For the above reasons and the more detailed ones in the lead judgment, I agree that this appeal lacks merit.

I also dismiss it.

Appearances

Femi Falana, SAN, with him, Samuel Ogala, Esq. and Marshal Abubakar, Esq. - For Appellant

Bem Atetan, Esq., with him, Thomas Oko, Esq. - For Respondent

Judgment

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the decision of Federal High Court sitting in Lagos delivered by Hadiza Shagari J. on 28th March, 2018 granting the claims of the 1st – 4th Respondents as Plaintiffs against the 5th Respondent and Appellant as 1st and 2nd Defendants respectively. BRIEF STATEMENT OF FACT The case of the 1st – 4th Respondents as Plaintiffs at trial was that on 3rd October, 2013, one Mr.

Ayodeji Falae (deceased), (husband to the 1st Respondent and father to the 2nd – 4th Respondents) and some other Ondo State Government Officers boarded the 5th Respondent’s flight 361 chartered to lift the remains of late Olusegun Agagu to Akure, Ondo State. That about 09.32 hours, just about a minute after take-off from Murtala Mohammed Airport, Lagos, the aircraft crashed outside the aerodrome and killed the deceased.

In view of the above, the 1st – 4th Respondents instituted an action at the Federal High Court sitting in Lagos via a Writ of Summons and Statement of Claim dated 2nd October, 2014 against the 5th Respondent and Appellant as 1st and 2nd Defendants respectively seeking the following reliefs: i.)“A declaration that by its wrongful act, neglect or default, the First Defendant on 3 October, 2013 caused the death of the deceased when its flight 361 (at about 9.32 in the morning a minute after take-off and just outside of the aerodrome) crashed. ii.) A declaration that the first Defendant breached its statutory duties imposed by Section 55 of the Civil Aviation Act 2006 when its flight 361 (at about 9.32 in the morning a minute after take-off and just outside of the aerodrome) crashed and indeed caused the death of the deceased. iii.) A declaration that the 2nd Defendant breached its statutory duties imposed by Section 31 (f) of the Civil Aviation Act when the 1st Defendant’s flight 361 (at about 9.32 in the morning a minute after take-off and just outside of the aerodrome) crashed and indeed caused the death of the Deceased. iv.) A declaration that the 1st Defendant breached Section 74 of the Civil Aviation Act 2006 by its wrongful act or failure to procure a legally binding insurance policy covering its liabilities under the Act and also its liabilities towards compensation for damages that may be sustained by third party such as the Plaintiffs. v.) A declaration that the 1st Defendant having failed to procure a legally binding insurance policy pursuant to Section 77 of the Civil Aviation Act 2006, the 2nd Defendant has breached its duties under Section 31 (f) of the Civil Aviation Act 2006 to ensure efficiency and regularity of the Air navigation and the safety of aircraft, persons and property carried in aircraft and for preventing aircraft from endangering persons and property. vi.) A declaration that the 1st Defendant breached its common law duty of care when the Deceased died in the flight 361 which was in possession and control of the 1st Defendant. vii.) The sum of US$100,000 (One Hundred United State Dollars) from the 1st and 2nd Defendant jointly and/or severally as general damages for the breaches of their respective duties under common law and the Civil Aviation Act 2006. viii.) The sum of N219,906,250 as assessed in schedule A from the 1st and 2nd Defendants jointly and/or severally being the net income (less the Deceased’s living expenses, cash discount and general damages of $100,000) the Deceased would have made for 15 years as special damages for the breaches of their respective duties under common law, Civil Aviation Act 2006, Fatal Accident Act 1846 and Fatal Accident Law of Lagos State. ix.) IN THE ALTERNATIVE TO THE RELIEF IN PARAGRAPH 31(H) ABOVE, the sum of N108, 527,740 and $19,000 as assessed in Schedule B from the 1st and 2nd Defendants jointly and/or severally being cost of dependency by the Plaintiffs on the Deceased (less cash discount and general damages of $100,000) special damages for the breaches of their respective duties under common law, Civil Aviation Act 2006, Fatal Accident Act 1846 and Fatal Accident Law of Lagos State. x.) The sum of N5,000,000 being the cost to the Plaintiffs filing and prosecuting this claim and legal practitioner’s fees. xi.) The Plaintiffs claim post-judgment interest on the judgment sum which may be awarded at the rate of 10% per annum from the date of judgment until judgment sum is finally paid. ​In response, the 5th Respondent as 1st Defendant at trial filed its Statement of Defence dated 20th December, 2016 while the Appellant as 2nd Defendant filed its Statement of Defence dated 2nd March, 2016.

The 1st – 4th Respondents also filed a Reply to the 1st Defendant’s Statement of Defence dated 6th March, 2017 and a Reply to the 2nd Defendant’s Statement of Defence dated 29th June, 2016. Upon the close of trial and final addresses of parties, the trial Court entered judgment for the 1st – 4th Respondents against the Appellant and 5th Respondent jointly and severally. Dissatisfied with the judgment of the trial Court, the Appellant invoked the appellate jurisdiction of this Court via a notice of appeal dated 6th April, 2018.

The notice of appeal containing five grounds of appeal is at pages 517 – 522 of the record of appeal. In line with the rules and practice of this Court, parties filed and exchange their respective briefs of argument. The Appellant’s brief is dated and filed 24th June, 2020. The said brief was settled by ONYINYE J. UZOH who for the determination of the appeal distilled four issues to wit: 1.

“Whether the trial Court was right in law in his evaluation of evidence and ascribing probative value to the evidence placed before it, particularly to the extent that concerned the Appellant having regard to the facts and circumstances of this case. (Grounds 1 and 3). 2. Whether in the light of the provisions of the Civil Aviation Act, the learned trial Judge was right in law to have granted all the reliefs sought against the Appellant. 3.

Whether the judgment given outside the constitutionally required period when no new issue of law was raised during the re-adoption of the final addresses is competent in law. 4. Whether the trial Court was right in law when he held that the doctrine of res ipsa loquitur applied to establish failure to exercise duty of care to the extent that concerns the Appellant having regard to the facts and circumstances of this case.” The 1st – 4th Respondents’ brief is dated 21st October, 2021 and filed on 25th October, 2021.

The said brief was settled by MUYIWA OGUNGBENRO ESQ., who also distilled four issues for the determination of the appeal as follows: 1. “Whether the trial Court’s finding regarding the application of res ipsa loquitur can be faulted or was wrong? (Distilled from ground 5 of the notice of appeal). 2. Whether taking into consideration the evidence placed before the trial Court and having regard to the facts and circumstances of this case, the trial Court was right in entering judgment for the first – fourth Respondents? (Distilled from grounds one and three of the notice of appeal). 3.

Whether the trial Court’s finding on the applicability of common law, Fatal Accident Act and Fatal Accident Law of Lagos State was correct and enough justification for the award of general and special damages to the first – fourth Respondents? (Distilled from ground two of the notice of appeal). 4. Whether the trial Court’s judgment should be set aside on the ground that it was delivered outside the constitutionally required period taking into consideration the re-adoption of final written addresses by the parties? (Distilled from ground four of the Notice of Appeal).

The 5th Respondent’s brief of argument is dated 14th January, 2022 and filed on 17th January, 2022. The said brief was settled by M. ADEREMI BASHUA ESQ., who for the determination of the appeal distilled a sole issue to wit: “Whether the trial Court Judge applied the appropriate law to the facts of the case.” Before I venture into the arguments and submissions of counsel in this appeal, I will start with the propriety of the 5th Respondent’s brief of argument.

The 5th Respondent instead of playing its role as a Respondent in due observance with the rules of appellate practice turned itself to an Appellant who has not filed a notice of appeal.

The traditional role of a Respondent is to defend the judgment being appealed against and not to criticize it. See AJAYI V. ADEBIYI & ORS (2012) LPELR – 7811 (SC), DANGANA & ANOR V. USMAN & ORS (2012) LPELR – 25012 (SC). The 5th Respondent in this appeal criticized the decision of the trial Court on its applicability of the Fatal Accident Act, Fatal Accident Law of Lagos State and the common law in the determination of the issues submitted by the parties.

The law is that a party who wishes to have the decision of a Court set aside must come by way of notice of appeal or cross-appeal. In the light of this, the said brief filed by the 5th Respondent will not be countenanced in the determination of the instant appeal. Consequently, the 5th Respondent’s brief of argument is hereby struck out.

In the determination of this appeal, it is apparent that the issues formulated by the Appellant and the 1st – 4th Respondents (hereinafter referred to as the Respondents) are identical in substance and in form, hence I shall adopt the issues formulated by the Appellant’s counsel in my resolution. For ease of reference, I shall reproduce the said issues in the order I feel expedient as follows: ISSUE NO.1 Whether the judgment given outside the constitutionally required period when no new issue of law was raised during the re-adoption of the final addresses is competent in law?

On the above issue, counsel for the Appellant submitted that the final addresses were adopted on the 19th October, 2017 and on the 5th March, 2018, the parties were invited to re-adopt the said final addresses. Counsel submitted further that during the re-adoption of the said addresses, no new issue was raised for consideration hence, the judgment of trial Court was incompetent. Reliance was placed on the cases of AWOYALE V. OGUNBIYI (1985) LPELR (661) 1 at 19-20, IDOWU & ORS V. SEGUN KOYA INVESTMENTS LTD (2017) LPELR-43580(CA) AND IFEMESIA V. ECOBANK (2018) LPELR-46589(CA).

In response to the submission of the Appellant on the constitutionality of the decision of the trial Court, the Respondents’ counsel submitted that Courts are vested with discretion to call for re-adoption of final written addresses where it requires parties to address it on new, moot, grey issue or issues raised suo motu by the Court. Reliance was placed on GUBLA V. LAWUYI & ORS (2019) LPELR – 48391 (CA).

Counsel submitted further that where a party seeks to set aside a judgment on the ground that it was not delivered within the statutory period, the party must show that the non-compliance occasioned a miscarriage of justice. That the Appellant in its brief has not shown that it suffered any miscarriage of justice as result of the non-compliance with the provision of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

RESOLUTION Without dissipating much energy on an elementary principle of law that has been dealt with in a legion of judicial authorities, it is elementary to state that the constitutional provision that mandates judges to deliver their decisions within a 90 days window is not left without qualification. See Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). A decision delivered outside the 90 days window without more cannot be declared unconstitutional and a nullity.

The simple reason why this provision of the law is in place is to ensure that a trial judge does not go into oblivion of the facts of the case and the demeanour of witnesses when writing his judgment. Proper evaluation of evidence and the ascription of probative value is crucial to any decision, hence the trial judge must not be found wanting in this regard and by virtue of human error, it is presumed that the trial judge who delivers his decision outside 90 days might have lost his position to properly evaluate the evidence led before him.

The qualification that comes with this principle is that a party who wants an appellate Court to set aside the decision of a Court delivered outside the 90 days must not only show that the decision was so delivered outside 90 days, like the Appellant in the instant appeal, the party must go further to show that such failure to comply with the provision of Section 294 (1) of the Constitution (supra) occasioned a miscarriage of justice. See 294(5) of the Constitution (supra).

The Appellant in the instant appeal failed woefully in this regard by not showing even in the slightest of manners how it suffered a miscarriage of justice. The Appellant only satisfied the first limb of the principle in Section 294 (1) of the Constitution (supra) but failed to satisfy that it suffered any injustice or miscarriage of justice. See Section 294 (5) of the Constitution (Supra). Without further ado, this issue is resolved against the Appellant and in favour of the 1st – 4th Respondents.

ISSUE NO. 2 Whether in the light of the provisions of the Civil Aviation Act, the learned trial Judge was right in law to have granted all the reliefs sought against the Appellant. This issue is similar to the issue no. 3 formulated by the Respondents’ counsel. This issue centres on whether the trial Court was right in its application of common law, Fatal Accident Act and Fatal Accident Laws of Lagos State to the case filed by the Respondents.

On this issue, counsel for the Appellant submitted that aviation claims can only be made in strict compliance with the Civil Aviation Act and aviation claims being sui generis, are governed by the Civil Aviation Act and not common law, Fatal Accident Act 1846 and Fatal Accident Law of Lagos State. Reliance was placed on OTOAKHIA v. AERO CONTRACTOR NIGERIA LTD (2014) LPELR-23319(CA).

He argued that the law is trite that where domestic/common law right as been enacted into a statutory provision, it is to the statutory provision that resort must be had for such right, and not the domestic/common law. Counsel referred the Court to Section 48 (2) & (3) of the Civil Aviation Act. He submitted further that Section 48 (2) of the Civil Aviation Act and all that it stands for, are clear to the effect that it is only the Civil Aviation Act and Convention that regulates aviation claims.

Flowing from the hills of the above, counsel submitted that reliefs’ g, h, I, j and k of the Respondents’ claims are bound to fail since same are not legitimate claim given under the aviation law.

By way of reply, counsel for the Respondents submitted that the Civil Aviation Act only deals with an aspect of the Respondent’s case and that the damages sought by the Respondents also fall under the purview of the Fatal Accident Act and Fatal Accident Law of Lagos State. Reliance was placed on N.B.C. PLC V. ABUBAKAR (2006) ALL FWLR (Pt. 335) 122 at 140 (CA).

Counsel submitted that the second limb of Article 21 of the Montreal Convention states that the liability of the carrier shall not exceed 100,000 USD if the carrier proves that such damages was not due to its negligence or the wrongful act or omission or that of its servants or agents or that such damage was solely due to the negligence or other wrongful act or omission of a third party.

Counsel for the Respondents submitted that the second limb of  Article 21 permits the trial Court to grant an amount in excess of $100,000 where the Appellant has failed to prove that it was not negligent or that it did not commit any wrongful act or omission.

RESOLUTION In resolving this issue, recourse must be made to Section 48 of the Civil Aviation Act which provides as follows: “48 (1) The provisions contained in the Convention for the Unification of certain rules relating to International Carriage by Air signed at Montreal on 28th May, 1999 set out in the Second Schedule II of this Act and as amended from time to time, shall from the commencement of this Act have force of law and apply to international carriage by air to and from Nigeria, in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage, and shall, subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons. (2) The provisions contained in the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Montreal on 28th May, 1999 as has been modified and set out in the Third Schedule of this Act and as amended from time to time, shall from commencement of this Act have force of law and apply to non-international carriage by air within Nigeria, irrespective of the nationality of the aircraft performing the carriage, and shall, subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.

This appeal centres on non-international carriage by air within Nigeria. Going by the provision of Section 48(2) of the Civil Aviation Act reproduced above, the Convention for the Unification of certain rules relating to International Carriage by Air signed at Montreal on 28th May, 1999 and the provisions of the Civil Aviation Act shall govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons. There are legion of cases of this Court on the rules guiding the Court when faced with a question predicated on interpretation of statutes.

The law is well settled that for the interpretation of the statutes, once the words used are clear and free from ambiguity, they should be accorded their natural meaning without any embellishments. I should bear in mind that where the words of the legislature are clear, there is no room for applying any of the principles of interpretation. It is very clear that the words used in expressing the intention of the legislature in Section 48 of the Civil Aviation Act are plain and unambiguous.

After having carefully examined the provisions of Section 48(2) of the Civil Aviation Act (supra), I am of the view that the word “SHALL” in the context in which it is used means must, a matter of compulsion. Flowing from the hills of the above, the rights and responsibilities of the parties in the instant appeal are subject to the provision of the Civil Aviation Act and other conventions it incorporated and certainly not the Fatal Accident Act, Fatal Accident Law of Lagos State and not the common law.

The law is that where domestic/common law right as been enacted into a statutory provision, it is to the statutory provision that resort must be had for such right, and not the domestic/common law. Hence an air passenger is not at liberty to choose as between the provisions of the convention and the domestic/common law, for claims for damages against the carrier. Such claims have to be asserted only in accordance with and subject to the terms and conditions of the convention and the Civil Aviation Act and cannot be pursued under any other law. See the case of AKINJOKUN V.

LUFTHANSA GERMAN AIRLINES & ANOR (2018) LPELR – 46729 (CA).

I am therefore of the unflinching view that the rights and liabilities of the parties can only be determined within the purview of Section 48(2) and (3) of the Civil Aviation Act (supra). Section 48(3) of the Civil Aviation Act provides for the liability of the carrier in the event of death of a passenger.

The said section provides that: (3) In any case of aircraft accident resulting in death or injury of passengers, the carrier shall make advance payments of at least US $30,000 (thirty thousand United States Dollars) within 30 (thirty) days from the date of such accident, to the natural person or such natural persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons and such advance payments shall not constitute recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier.” While the Appellant under this issue has argued that the Respondents are only entitled to the sum of 100,000 USD as a result of the death of Mr.

Ayodeji Falae (Deceased), the Respondents on the other hand have made heavy weather on the fact that according to Article 21 of the Montreal Convention, the liability of the carrier shall exceed the sum of 100, 000 USD if the carrier cannot prove that the damage was not due to its negligence or other wrongful act or omission of the carrier or its servants or agents or such damage was sole due to the negligence or other wrongful act or omission of a third party.

The Respondents’ counsel submitted in paragraph 6.16 and 6.17 of the 1st – 4th Respondents brief as follows: “The second limb of Article 21 permits the trial Court to grant an amount in excess of $100, 000 where the Appellant has failed to prove that it was not negligent or that it did not commit any wrongful act or omission. As argued under issues 1 and 2 above, the Appellant failed to establish that it was not negligent. Therefore, the first – fourth Respondents are entitled to special damages as pleaded.” The provisions of Article 21 of the Montreal Convention is instructive on this note.

For ease of reference, permit me to reproduce the provision of Article 21 of the Montreal Convention as follows: “ARTICLE 21- COMPENSATION IN CASE OF DEATH OR INJURY OF PASSENGERS For damages arising under paragraph 1 of Article 17 not exceeding 100,000.00 United States Dollars for each passenger, the carrier shall not be able to exclude or limit its liability.

The carrier shall not be liable for damages arising under Paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 United States Dollars if the carrier proves that; such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or such damage was solely due to the negligence or other wrongful act or omission of a third party.” Going by the above provision of the Montreal Convention, I am inclined to agree with counsel for the 1st – 4th Respondent only to the extent that the liability of the carrier can exceed the sum of 100, 000 USD if either of the two conditions cannot be met by the carrier. ​ However, the case of the 1st – 4th Respondent as to whether they are entitled to damages exceeding the sum of 100, 000 USD brings us to the consideration of the other issues in this appeal i.e. whether the trial Court was right to have invoked the doctrine of res ipsa loquitur against the Appellant; whether the Appellant can be liable to the claims of the Respondents or whether it proved that it was not negligent in the event causing the death of Mr.

Ayodeji Falae (Deceased). Going by the provisions of the Civil Aviation Act and the Montreal Convention elaborately considered in the preceding part of this judgment, the pivotal question upon which the claims of the 1st – 4th Respondents against the Appellant rest on in this appeal is: “WHO IS THE CARRIER?” Going by the provisions of Section 48 of the Civil Aviation Act and Article 21 of the Montreal Convention, the success of any claim in excess of the statutory damages of 100, 000 USD is dependent on the evidence led by the carrier which the Appellant is not.

The carrier in the instant appeal is the 5th Respondent i.e. Association Aviation Nigeria Limited and it is the cooperate body with the evidential burden of proving that: 1. “Such damage was not due to its negligence or its other wrongful act or omission or that of its servants or agents; or

Such damage was solely due to the negligence or other wrongful act or omission of a third party.”

The notice of appeal before this Court is that of the Appellant who was 2nd Defendant at trial and this appeal can only be decided within the confines of the grounds of appeal and the issues for determination as it relates to the Appellant in this appeal. Flowing from the hills of the above, It is my conclusion that the rights and liabilities of the parties can only be decided within the purview of the Civil Aviation Act and other conventions which it incorporates.

Also, going by Section 48(2) of the Civil Aviation Act (supra), the Appellant, not being the carrier in the instant appeal cannot be liable to the claims of the 1st – 4th Respondents, i.e. whether the sum of 100, 000 USD or any amount in excess. In my final analysis, this issue is hereby resolved against the 1st – 4th Respondents and in favour of the Appellant.

Consequently, the issues as to whether the trial Court was right to have invoked the doctrine of res ipsa loquitur against the Appellant and whether the Appellant through credible evidence was able to prove that it was not negligent in the event that caused the death of Mr. Ayodeji Falae (Deceased) have become otiose and therefore irrelevant in the determination of the instant appeal. On the whole, I hold that the appeal succeeds in part.

That part of the judgment of the trial Court delivered by Hadiza Shagari J., on the 28th March, 2018 granting reliefs sought by the 1st – 4th Respondents against the Appellant as 2nd defendant is hereby set aside. Parties are to bear their respective costs.

ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Abubakar Sadiq Umar, JCA, made available to me a copy of the judgment, now delivered, in draft form, in which this appeal was allowed in part. I agree with and adopt as mine the resolution of the issues in contention, as comprehensively done by my learned brother. I will only make few comments in support. This Court in Akinjokun v.

Lufthansa German Airlines & Anor (2018) LPELR-46729(CA), per Jauro, JCA (now JSC), said, pages 25-26: “The law is that where domestic/common law right as been enacted into a statutory provision, it is to the statutory provision that resort must be had for such right, and not the domestic/common law, Hence an air passenger is not at liberty to choose as between the provisions of the convention and the domestic/common law, for claims for damages against the carrier.

Such claims have to asserted only in accordance with and subject to the terms and conditions of the convention and cannot be pursued under any other law.” (Emphasis mine). In Air France v. Mrs. Francisca Majasan (2017) LPELR 43500(CA), this Court recognized that, page 16: “The Montreal Convention entered into force on May 28, 1999. Nigeria is signatory to the Montreal Convention.

It came into force in Nigeria on November 4, 2003, and was domesticated in Nigeria by the Civil Aviation Act, 2006.” By Section 48(2) of the Civil Aviation Act, the provisions of the said Act apply to non-international carriage by air within Nigeria, and govern the rights and liabilities of carriers, passengers, and other persons. Having settled the applicability of the Civil Aviation Act as against the Fatal Accident Law of Lagos State, the crucial query is whether the Appellant can be described as the carrier. The transportation, leading to the mishap in issue herein, was by an air carrier.

Merriam-Webster.com Dictionary defines air carrier as: 1. An organization transporting passengers and cargo by aircraft: AIRLINE 2. An aircraft certificated by a designated governmental agency to carry persons or cargo for hire. Thus, an air carrier is a body that undertakes directly by lease, or other arrangement, to engage in air transportation. An air carrier has the control over the operational functions performed in providing that transportation. See Sections 32 – 34 of the Civil Aviation Act, 2006.

The Appellant is the authority, acting through its Director General, in charge of the regulating and fostering of the safety of Civil Aviation in Nigeria. The Appellant was not the carrier, within the meaning of the Section 48(2) of the Civil Aviation Act, and therefore, cannot be held liable to the claims of the 1st - Respondents. For this reason and for the more robust reasons given by my learned brother, I also allow this appeal in part and abide by the orders made in the lead judgment.

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I have carefully perused the judgment delivered by my learned brother HON. JUSTICE ABUBAKAR SADIQ, JCA and found out that His Lordship rightly resolved all the issues involved in this appeal. It is elementary that judgment/decision delivered outside the ninety days window is valid except where an Appellant can satisfy the Court that the failure to deliver the judgment within the stipulated time has occasioned a Miscarriage of Justice.

See Section 294(5) of the Constitution of the Federal Republic of Nigeria 1999, AKOMA & ANOR VS OSENWOKWU & ORS (2014) LPELR – 22885 (SC) and OWOYEMI VS ADEKOYA (2003) 18 NWLR (PART 852) PAGE 307. The Appellant in this case has failed to show how the failure of the trial Judge to deliver judgment within the ninety days window has occasioned Miscarriage of Justice. Section 48 of the Civil Aviation Act 2006 incorporates the Provisions of the Convention for the Unification of Certain Rules relating to International Carriage 1999 (Also known as Montreal Convention 1999).

It clearly provides that Montreal Convention shall be applicable to Domestic Flights regardless of the Nationality of the Aircraft performing the carriage and shall govern the Rights and Liabilities of Carriers, Passengers. Consignors, Consignees and other Persons. It is trite that where Domestic/Common Law Right has been enacted into a Statutory Provision, it is the Statutory Provision that must be had for such right, not the Domestic/Common Law Right.

I am also in agreement with His Lordship that an Air Passenger is not at liberty to choose as between the Provisions of the Convention and the Domestic/Common Law for Claims for Damages against the Carrier. Thus the rights and liabilities of the carrier and the air passengers can only be determined by the Provisions of Section 48(2) of the Civil Aviation Act 2006 and not the Fatal Accident Act or Fatal Accident Law of Lagos State.

See IBIDAPO VS LUFTHANSA AIRLINES (1997) LPELR SC AND HARKA AIR SERVICES VS IKEAZOR (2011) 13 NWLR (PART 1264) PAGE 320 In respect of Article 21 of the Montreal Convention 1999, an Air Carrier will not be liable for damages exceeding $100,000 (One Hundred Thousand Dollars) provided the carrier proves that the damage was not due to negligence or other wrongful act or omission of the carrier or its servants or agents or such damage was due to wrongful act or omission by a third party.

In this instant case, it is only the 5th Respondent that is required to prove that the damaged caused was not due to its negligence or the omission of its servants or agent. The Appellant is not the carrier but a regulatory agency and as such cannot be held liable to the claims of the 1st – 4th Respondents. Consequently, the trial Court was in error to have held the Appellant liable to pay damages to the 1st – 4th Respondents. For these reasons, I agree with the decision of His Lordship to allow this appeal in part. To this end, the judgment of the trial Court delivered by Hon.

Justice Hadiza Shagari in Suit No: FHC/L/CS/1494/2014 granting the reliefs sought by the 1st – 4th Respondents against the Appellant is hereby set aside. I also abide by the order made as to costs.