In a move that defied judicial regulations and which the presiding judge described as “a novel issue”; Dana Air, joined as a defendant in a suit, on Thursday filed an affidavit supporting the plaintiffs’ motion to halt the coroner’s inquest into the cause of the airline’s June 3 crash.
This came less than 24 hours after the Federal Government reinstated the airline’s operating licence.The plaintiffs, Dele Ore and the Civil Aviation Round Table Initiative, had gone to the Federal High Court, Lagos, to demand a stop to the inquest stating that the Lagos State Coroners’ System Law is not applicable to deaths arising from aviation accidents.
Joined in the suit, filed at the Federal High Court, were Oyetade Komolafe, the coroner; the Chief Coroner of Lagos State; the Lagos State Chief Judge; the Attorney General of Lagos State as the 1st – 4th defendants respectively.Also joined as defendants were the Attorney General of the Federation; the Federal Ministry of Aviation; Nigerian Civil Aviation Authority (NCAA); Federal Airports Authority of Nigeria (FAAN); Accident Investigation Bureau (AIB); Nigeria Air Space Management Authority (NAMA); and Dana Air Lines.
Okon Abang, the presiding judge, noted that there is no provision that allows a defendant to file a motion in support of the plaintiff’s affidavit.
“But if relying on it will assist the court…
“The most important issue is to consider if the interest of the 1st – 4th defendants will be prejudiced.
“The 1st – 4th defendants are at liberty to file their objection to the affidavit if they so wish,” Mr. Abang said while delivering a bench ruling.
Mr. Abang fixed September 13 for a “definite hearing” of the plaintiff’s motion for interlocutory injunction.
Aligning with the opposition
Mr. Ore, a retired pilot, who filed the suit on behalf of the Civil Aviation Round Table, had asked the court to determine whether the Lagos State Chief Judge is not acting ultra vires by setting up a coroner’s inquest into the cause of the Dana air crash.
According to Mr. Ore, with Nigeria having ratified and domesticated the International Civil Aviation Organization (ICAO) Chicago 1944 Act, the coroner’s inquest into the Dana air crash is “unconstitutional, null and void and of no effect whatsoever”.
He further urged the court to declare that the Coroners’ Law does not apply to aviation related matters as well as deaths arising from aviation accidents.
In their affidavit at the Federal High Court, Dana Air’s counsel echoed the positions of the plaintiffs..
“The crux of instituting this application is in the sole interest of the public,” read the affidavit.
“The inquest ought not to have commenced until the conclusion of the AIB investigation.
“The coroner has subjected the AIB report to scrutiny by various experts,” the affidavit stated.
Akinjide Bakare, counsel to the Lagos State government said that the airline is pulling its weight behind a “faceless group” posing as plaintiffs.
“All the rules…none of them said that the defendant can bring an affidavit in support of a plaintiff’s motion,” Mr. Bakare said.
For the most part of the sitting, Mr. Akinjide cut a forlorn figure in the overcrowded 20-seater courtroom.
Almost all his positions before the court were countered by counsels representing the federal government agencies as well as that of Dana Airline.
When he cited Order 26, Rule 5 of the Court’s Civil Procedural Rule regarding filing of affidavits in support of a plaintiff’s motion; John Nwobike, the plaintiffs’ counsel, opposed it.
Mr. Nwobike said that the affidavit in question should not be subject to Order 26 since it is not a counter affidavit.
“The affidavit was sworn personally by the 11th defendant (Dana Air),” Mr. Nwobike, a Senior Advocate of Nigeria (SAN), said.
“It does not in any way add or remove from the case put forward by the 1st – 4th defendant in respect of our motion of notice.
“There is nothing in Order 27 of the Court’s Civil Procedural Rules 2009 dealing with affidavits that prohibits respondents to an application by way of motion of notice from providing material facts and placing them before the court in an affidavit in support of the motion,” said Mr. Nwobike.
Both Bolaji Ayorinde and Obi Okwusogu, counsels to Dana Air and NAMA respectively, reiterated Mr. Nwobike’s position.
When Mr. Akinjide asked the court to stand down the matter, all the counsels also opposed him.
At a point, Mr. Akinjide, visibly flustered, alluded to his co-defendants as being “enemies.”
“Any of the defendants who is interested to be on the side of the plaintiffs should apply to become a plaintiff,” he said.
The judge cautioned him against using improper languages and being “emotional in my court.”
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