Dana Air wants crash probe suspended

Nigerian Aviation  Minister

Barely 24 hours after the Federal Government reinstated the airline’s operating licence, embattled Dana Air yesterday sprung a surprise when it joined in the desperate bid to stop the inquest into the cause of the crash of its Lagos bound plane that killed all 150 persons on board on June 3.

Dana who had been joined as a defendant in a suit over the crash curiously filed an affidavit supporting the plaintiffs’ motion to halt the coroner’s inquest into the cause of the crash, a move which the presiding judge described as “a novel issue”.

Justice Okon Abang of a Federal High Court sitting in Ikoyi, Lagos, admitted the affidavit by Dana, supporting the request of a Non-Governmental Organisation, Civil Aviation Round Table Initiative, to stop the proceedings of a Lagos state coroner court over the crash.

The judge also overruled an objection by the lawyer appearing for the state, Akinjide Bakare, that the rules of the Federal High Court only permits a defendant to file a counter-affidavit to a plaintiff’s motion on notice and not an affidavit in support like the one filed by Dana.

He turned down Bakare’s request to vacate the interim order restraining the continuation of the proceedings of the coroner court. The judge held that the order granted on August 28, was by “consent of the parties” and as such he lacked the power to vacate it.

According to the judge; “Our rules do not contemplate a situation when parties joined as defendants have divergent interests. Though no provisions in the rules permit a defendant to file an affidavit in support of a plaintiff’s motion, but if relying on it will do justice in the matter, I don’t think it is wrong.

“The issue to consider is if the interest of the first to fourth defendants will be prejudiced. The first to fourth defendants are at liberty to file their objection to the affidavit”, he said.

Bakare had initially raised an objection to the affidavit on the grounds that it was filed out of time based on the provisions of Order 25 Rule 6 of the Federal High Court Civil Procedure Rules.

But counsel representing Dana Air, Chief Bolaji Ayorinde (SAN), said the provisions of the rules referred to by Bakare only applied to a counter-affidavit.  He said his filing was not strange, adding, “the purport of this affidavit is to support the necessity for an interlocutory injunction pending the hearing of the substantive originating summons.

Also counsel to the plaintiffs, Dr. Joseph Nwobike, SAN, like other counsel for the other defendants, supported Dana’s position.

According to Nwobike, “It is not a counter-affidavit and therefore could not come within the contemplation of Order 26 Rule 5.”This does not, in any way, add or remove the case put forward by the first to fourth defendants in respect to our motion on notice. The case has been adjourned till September 13 for definite hearing.

Civil Aviation Round Table Initiative, and its President, Captain Dele Ore, had in their suit, joined Dana Air with the coroner presiding over the inquest, Mr. Oyetade Komolafe, the Lagos State Chief Coroner, the state Chief Judge, and the Attorney-General of the state.

Ore, a retired pilot, 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. The plaintiffs sought an interlocutory injunction and an order nullifying the proceedings of the inquest, saying the coroner has no power to carry out an inquest into an air accident. The other defendants are the Ministry of Aviation, the Nigerian Civil Aviation Authority, Accident Investigation Bureau, and the Nigeria Airspace Management Authority.

According to Ore, with Nigeria having ratified and domesticated the International Civil Aviation Organisation (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.