One of the 25 cases filed by victims of the 2012 Dana air crash will soon be decided. A date for judgment is expected to be fixed on April 11 when parties will adopt their final addresses. JOSEPH JIBUEZE reviews the case.
The Federal High Court in Lagos has fixed April 11 for adoption of written addresses in a suit by Mr Femi Anibaba against Dana Airlines Limited and Stacey Sellers.
Justice Mohammed Idris adjourned after the plaintiff’s counsel Dr Babatunde Ajibade (SAN) cross-examined the defendant’s last witness, Prof Elias Wahab, a sociologist.
The plaintiff sued as the administrator of the estate of Mrs. Oluwatosin Ibironke Anibaba, for and on behalf of her dependants.
Mrs Anibaba died when a Dana Airline McDonnell Douglas 83 aircraft with registration number 5N-RAM and operated as Flight No. 9J–992 crashed at the Iju-Ishaga area of Lagos State on June 3, 2012.
Sellers was sued as the personal representative of the estate of Mr. Peter Simon Waxtan, a United States citizen who flew the ill-fated plane.
The aircraft crashed at about 3:35pm on its approach into Lagos killing all 153 persons on board.
The plaintiff said Dana Air was liable for damages as a result of Mrs Anibaba’s death in the air crash of up to $100,000.00 without any right to limit its liability.
According to the plaintiff, the defendant is bound by Articles 17 and 21 of the Convention for the Unification of Certain Rules for International Carriage by Air signed at Montreal on 28th May 1999 as adopted under Section 48(2) of the Nigerian Civil Aviation Act No. 6 of 2006 (“NCAA 2006”).
“The first defendant…is also liable for damages sustained and/or loss caused due to the death of the deceased resulting from the air crash over and above the sum of $100,000.00 except it is able to prove that the damage or loss was not due to the negligence or other wrongful act or omission of the first defendant or any of its servants or agents or that such damage was due to the negligence or other wrongful act or omission of a third party,” the plaintiff said.
Mr Anibaba accused the pilot of a breach of duty of care when he failed to operate the aircraft in such a manner as to prevent it from crashing.
He listed the particulars of negligence as follows: “The pilot’s failure to promptly and properly respond to abnormal conditions in the engine throttle settings, engine power indications and engine power produced by the aircraft; his failure to properly manage fuel in the aircraft; and his failure to properly follow emergency procedures upon detecting loss of engine power by carrying out an emergency air return or landing the aircraft at the nearest available airport enroute to Lagos.”
The deceased
The late Mrs Anibaba was born on November 13, November 1978. She was 33 years when she died. She left behind her husband (the plaintiff), and her daughter, aged two years and a half when the crash occurred.
The plaintiff contends that the deceased would have lived to the age of 85 years and would have remained in gainful employment up to 70 but for her death in the air crash.
The late Mrs Anibaba attended the University of Essex, United Kingdom, where she obtained a Bachelor of Science (Hons) Degree in Economics in July 2000, before proceeding to obtain a Masters of Science Degree in International Consultancy and Accounting from the Reading University in December 2001.
At the time of her death, the she was employed by and held a senior position at the Fate Foundation.
The late Anibaba met her husband in 2006 and they got married on December 8, 2007. They had a child, Oluwatimisayo, but the deceased was said to be three months’ pregnant at the time of her death.
The plaintiff/claims
Mr Anibaba attended Bradford University in the United Kingdom and graduated in 1997 with a Bachelor of Science Degree in Economics before proceeding to obtain a Masters of Art Degree in Accounting and Finance from Leeds University in November 1998.
He qualified as a Chartered Accountant in the United Kingdom in May 2002 and was admitted as an Associate to the Institute of Chartered Accountants of Nigeria on May 8, 2008.
As the time of his wife’s death, the plaintiff held a senior position with Airtel Networks Limited but claimed he left the employment in order to care for his daughter. He is claiming the resultant loss of earnings due to leaving his job.
The plaintiff said in his statement of claim: “The deceased was responsible for the running of the home and the plaintiff has had to employ additional house help to take on these responsibilities and will claim the resultant additional costs incurred as a result of this fact.
“The plaintiff and the deceased shared the cost of paying for their daughter’s education in equal proportion. The plaintiff now has to bear this burden alone, and in fact has been bearing the burden alone since the death of the deceased.
“The only child of the marriage, Oluwatimisayo, is now aged 5 years. She previously attended Discovery House School and entered Reception at St. Saviour’s School in Ikoyi, Lagos in September 2014.
“She will remain in primary school until the age of 11 years and it is proposed that she will then attend secondary school at the British International School in Lagos until the age of 17 years. As with both her parents, it is the intention that Oluwatimisayo will attend a University in the United Kingdom up to obtaining a Masters’ Degree at least.
“At the time of her death, the deceased was employed as Head of Business and Alumni Support Services with the Fate Foundation in Lagos, Nigeria. It had been the deceased’s intention to secure promotion to the level of Director within the Fate Foundation and the plaintiff believes she would have secured this position but for her death.”
The monetary claims
The plaintiff is claiming N3,516,000.00 being funeral expenses incurred for burying the deceased; N290,000 and £4,000.00 being the estimated costs of the deceased’s personal belongings that were in her possession and that were lost at the time of the air crash; and N7,609,988.69 as past dependency on the deceased’s earnings.
The plaintiff also claims N149,831,926.04 as future dependency on the deceased’s earnings; N10,961,865.98 as the plaintiff’s past loss of earnings having to leave his job following his wife’s death; N200,208,688.58 as the plaintiff’s future loss of earnings; N570,749.15 as past dependency on the deceased’s pension; and N14,920,128.54 as future dependency on the deceased’s pension.
The plaintiff further claims N898,639.95 as past dependency on the plaintiff’s pension; N29,480,516.24 as future dependency on the Plaintiff’s pension; N1,423,200.00 as past dependency on the deceased’s services; N31,722,000.00 as future dependency on the deceased’s services; N147,400.00 as past health-care costs; N4,417,841.00 as future health-care costs; $1,000,000.00 for the deceased’s pre-death pain and suffering; and $1,000,000.00 for the plaintiff’s pain and suffering and loss of wife’s companionship and affection.
The plaintiff also claims $500,000.00 for the deceased’s daughter’s pain, suffering and loss of mother’s companionship and affection; 1,000,000.00 for the deceased’s parents’ pain, suffering and loss of daughter’s companionship and affection; interest on the damages at the rate of 21 per cent per annum from June 3, 2012 until the date of judgment and at the rate of 10 per cent per annum from the date of judgment until the date the judgment is finally liquidated, and costs of the action.
Multiple suits
Besides Mr Anibaba’s, there are other cases against Dana Airline by other victims’ families. The suits were filed in 2014. The plaintiffs obtained an order in 2015 based on their motion for determination of a preliminary point of law.
The court agreed that on a proper interpretation of the applicable provisions of the Nigerian Civil Aviation Act 2006, the plaintiffs did not have to prove that the air crash occurred as a result of Dana Airline’s negligence or any of its staff.
The court agreed that the relevant statute placed the onus on Dana Airlines to prove the cause of the accident and establish that it was not caused by its negligence or that of any person for whom it was responsible.
Thus, the only issue outstanding in the case is the quantum of damages to which the plaintiffs are entitled. The plaintiffs amended their claims, formulating quantum damages in 19 of the 25 cases.
The defendants, in their defences, did not argue that the plaintiffs and the victims’ families were not entitled to make the claims, but they are insisting that the plaintiffs must prove the claims with substantial evidence.
The plaintiffs contend that the airline paid compensation running into millions of dollars to the estate of its deceased pilot without requesting for the type of evidence they did from them.
Some of the 25 families Dr Ajibade represents filed their action in the USA against Sellers, but the US court ordered that the matters, except two, be conducted in Nigeria as a more convenient forum given that the accident occurred in Nigeria where the families and the airline are based.
While the two cases in the US have been settled out of court with reasonable compensation paid to the families (the diseased victims were USA citizens/residents), the Nigerian cases have continued to drag.
The most advanced of the cases is Mr. Anibaba’s in which hearing commenced on May 19, 2016 and was concluded on March 7.
Failed discussions
The plaintiffs exchanged correspondences with the airline, it insurers and their solicitors in the early days following the crash.
They had indicated willingness to hold settlement discussions once formulation and amendment of claims were completed in a substantial number of the cases, but an out of court settlement could not be reached.
Dana Airline’s local insurer, Prestige Assurance Plc, reportedly claimed that it paid all the claims arising from the crash in full, but it was not clear if the money had been paid to Dana Airlines.
The plaintiffs accused Dana Airlines of subjecting them to hardship following the death of their breadwinners in the ill-fated crash by refusing to pay them compensation several years after.
Dana Airlines/Sellers defence
Dana Airline, represented by Mrs Taiwo Kola-Balogun, denied most of the plaintiff’s claims, asking him to prove them.
It said Mr Anibaba’s assertion that the deceased would have lived up to 85 and worked in gainful employment until 70 was not only speculative, but contradicts the fact that average life expectance in Nigeria, according to the World Health Organisation, the National Bureau of Statistics and the World Bank, is between 52 and 55.
The airline denied that damages for pre-death pain and suffering of the deceased were recoverable, adding that loss of companionship and care were not recoverable heads of loss.
The defendant denied the claims on funeral expenses and deceased’s personal belongings to the extent that the losses were unproven and not supported by evidence.
Dana Airlines denied the plaintiff’s claim that he gave up his employment and experienced a loss of earnings as a direct result of his wife’s death.
It said there was no direct causal link between the crash and the plaintiff giving up his employment.
The defendant said the plaintiff continued his employment with Airtel until February 2014, almost two years after the crash.
Dana said the plaintiff’s claims on expected earnings did not take tax deductions and other economic factors into considering, nor did he take the falling value of the naira and exchange rate fluctuations into account.
“The plaintiff carries the burden of proof for the alleged losses. To the extent that the amounts being claimed are unsupported, damages are not recoverable.
“Without prejudice to the foregoing as to damages, the entitlement to damages and claims of dependency by the plaintiff and those for whose benefit the action is brought are denied and the plaintiff is put to proof of all aspects of loss,” Dana Airlines said.
Sellers added that the plaintiffs’ claims to damages were not admitted and “they are put to proof of all aspects of loss”.
An expert witness’ evidence
The last witness to testify for the defence in the case was Prof Elias Wahab of the Department of Sociology, Lagos State University (LASU).
He said he became a professor in Demography of Ageing in 2014, and that he is an expert in social conditions, longevity and matters of the elderly.
He denied that the life expectancy of the middle and upper class Nigerians was 70.
Under cross examination, he said life expectancy was as low 43 years in 2009, but that it improved due to “a lot of interventions to improve it, such as poverty alleviation.”
Wahab admitted that the number of the elderly was increasing numerically, but that life expectancy can differ even among persons who belong to the same “cohort” (age range).
He said people of the same age range could die at different times due to lifestyles, life chances, family history and personal history.
He said there was no guarantee that those who are poor would die before those who were rich.
“The rich are more belaboured with endogenous diseases. The lower class is faced with exogenous issues like malaria, typhoid, and they have access to medications,” he said.
The university don said the lower class was less likely to have a terminal illness than the rich.
“Between the two, the likelihood of survival is similar. The probability of living and dying each day is 50-50,” he said.
The witness admitted that his report was based on probabilities, saying: “The conclusions in my report are probabilistic.”
Pressed on whether his conclusions could not be taken as conclusive, he said: “Only God is absolute.”
When Dr Ajibade asked jovially if the witness was suggesting that God be invited as witness, everyone in the courtroom, including the judge, burst into laughter.
