WHEN IS A MEDICAL DOCTOR GUILTY OF NEGLIGENCE IN NIGERIA

A. Introduction

1. The medical profession is the most delicate of all professions because they engaged in the most delicate of all arts, which is the art of saving lives. As many lives have been saved due to the due diligence of some medical practitioners, so many lives have been lost due to the negligence of some medical practitioners. The focus of this edition of Akintunde Esan’s Legal Illuminations is when a Medical Doctor can be concluded to be guilty of negligence.

B. General Features of Negligence
 

1. Negligence generally, in law, connotes an omission or failure to do something which a reasonable man, under same circumstance, would do or doing of something which a reasonable and prudent man would not do. Odinaka v. Moghalu (1992) 4 NWLR (Pt. 233) 1; (2008) 13 NWLR (Pt. 1104) page 307; Diamond Bank Ltd. v. P.I.C. Ltd. (2009) 18 NWLR (Pt.1172) 67.
 

2. A reasonable man is a person who acts sensibly, does things diligently and takes proper, but not excessive, precautions. UITH V. Dr. Abegunde (2013) LPELR-21375(CA)per Ogbuinya, J.C.A. ,P. 39, paras. A-B. 
 

3. Negligence is a question of fact, not law, so that each case has to be viewed and decided from its peculiar facts. F.A.A.N v. W.E.S (Nig.) Ltd. (2011) 8 NWLR (Pt. 1249) 219.Ltd.
 

4. In the case of Malister (or Donoghue) (Pauper) v. Stevenson (1932) AC 562/(2002) 12 WRN 10, the locus classicus on negligence, the erstwhile House of Lords invented three ingredients of negligence, which a Claimant must establish, thus:

a) that the defendant owed him a duty of care
 

b) that there was a breach of the duty; and 
 

c) that the breach caused him injury or damage.  
 

5. These three ingredients have since been judicially recognised and adapted as part of Nigerian jurisprudence on negligence. Agbonmagbe Bank Ltd. v. CFAO Ltd. (1967) NWLR 173 ; Abubakar v Joseph (2008) 13 NWLR (Pt.1104) 307. 
 

C. When a Medical Doctor can be found Guilty of Negligence
 

1. The great jurist, Lord Denning, in his book, The Discipline of Law, pages 237, 242 and 243 opined that : "A medical man, for instance, should not be found guilty of negligence unless he has done something of which his colleagues would say: "He really did make a mistake there. He ought not to have done it'
 

2. A medical Doctor cannot be concluded to be negligent simply because something happens to go wrong. He can only be found to be guilty of negligence when he falls short of the standard of a reasonably skillful medical man, “in short, when he is deserving of censure.”
 

3. In the case of Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173 where a needle got broken in the abdomen of the patient during surgical operation. It was held that the surgeons exercised their best medical skills and so not negligent.

4. The courts have long recognized that there is no negligence if a doctor exercises the ordinary skill of an ordinary competent man professing to have that special skill. The locus classicus of the test for the standard of care required of a doctor or any other person professing some skill is the direction to the jury given by Mcnair J in Bolam v. Friern Hospital Management Committee (1957) 2 All England Reports 118 at page 122. Per Nwodo, J.C.A. (P.39, Paras. A-F) Abi v. CBN & Ors. (supra).
 

5. A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.

6. The above standard is the test for which a doctors' function of diagnosis and treatment is considered. Per Nwodo, J.C.A. (P.39, Paras. A-F) Abi v. CBN & Ors. (2011) LPELR-4192(CA).
 

D. Vicariously Liability
 

1. It is settled law that, a hospital authority is vicariously liable for the negligent acts or omissions of the whole of its staff. Igbokwe v. U.C.H.B.M. (1961) WNLR 173. 
 

2. In Unilorin v. Akilo (2001) 4 NWLR (Pt.703) 246, the parties were sued jointly and severally in tortuous liability, for negligent treatment of the respondent carried out by the 3rd and 4th defendants who were employees of the appellant as Medical Doctors. At the time material to the suit they discharged their duties as medical Doctors. The Court of Appeal held that, while the 3rd and 4th defendants were discharging their duties as Medical Doctors, they were not under control or management of the appellant. They are therefore individually liable for any tort they might have committed in the course of discharging such duty. J.U.T.H. v. Ajeh (2006) LPELR-7665(CA) per Tsamiya, J.C.A.(P.25 , paras. E-G)

WHEN IS A MEDICAL DOCTOR GUILTY OF NEGLIGENCE IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)

AVIATION LAW: REMEDIES FOR DELAYED,DAMAGED OR LOST BAGGAGE /COMPENSATION FOR DEATH OR INJURY OF AIRLINE PASSENGERS IN NIGERIA

Introduction

In the course of carriage of persons, baggage and cargoes by airline carriers, the delay, damage or loss of baggage and cargoes and sometimes loss of lives or personal injuries do occur due to human omissions or commissions, natural factors and accidents. This edition of Akintunde Esan’s Legal Illuminations is focused on the on the international and domestic laws governing the rights and liabilities of airline carriers, passengers, consignors and consignees in Nigeria in the context of remedies for delayed, damaged or lost baggage and compensation for death or injury of airline passengers in Nigeria.

A. Legal Framework

Aviation Law is body of international and domestic laws governing various aspects of civil aviation.

1. International Conventions

The rights and liabilities of airline/carriers, passengers, consignors and consignees in Nigeria are regulated by International Conventions. These Conventions have as their objective the unification of certain rules relating to International Carriage by air in order to ensure uniform standard, the orderly development of international air transport operations and the smooth flow of passengers, baggage and cargo in accordance with the principles and objectives of the Convention on International Civil Aviation. The ultimate purpose and intention of these Conventions is to remove those actions governed by them from the uncertainty of the domestic laws of the member States. Thus, all countries that are signatories apply them without recourse to their respective domestic Laws. See Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512, per Rhodes-Vivour, JSC

a. Warsaw Convention 1929

The Convention for the Unification of Certain Rules Relating to International Carriage by Air 1929 commonly known as the Warsaw Convention as amended by the Hague Protocol 1955 is an international convention which regulated liability for international carriage of persons, luggage, or goods performed by aircraft for reward. It was signed in Warsaw on 12 October 1929, and became effective on 13 February 1933.

b. Montreal Convention 1999

The Montreal Convention (formally, the Convention for the Unification of certain rules relating to International Carriage by Air). It is also termed the Agreement Relating to Liability Limitation of the Warsaw Convention and Hague Protocol. The Convention is a multilateral treaty adopted by a diplomatic meeting of the International Civil Aviation Organisation (ICAO) member states at Montreal on 28th May, 1999. By September 5, 2003 , the Montreal Convention was ratified by 31 states including Nigeria. It became effective on November 4, 2003.

The Convention retained the core provisions of the Warsaw Convention , it however, reviewed upward the limitation on liability for death and personal injury cases, waived the airlines’ due care defences and made the carrier’s liability an absolute liability in the absence of passenger’s negligence.

2. Domestic Applications of International Aviation Laws

The International treaties particularly the Warsaw and Montreal Conventions which govern the rights and liabilities of airline/carriers, passengers, consignors and consignees have been domesticated in Nigeria and made applicable to both international and non-international air carriage contracts.

a. Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953

The Warsaw Convention was domesticated as a Nigerian Law by the Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953, Vol. XI Laws of the Federation 1958. It came into operation on the 1st day of January 1954. This law is no longer part of the existing law in Nigeria contrary to as held in the case Ibidapo v. Lufthansa (1997) 4 NWLR (pt.498) 124 which was held before the commencement of the 2006 Civil Aviation Act, as it has been repealed by Section 77 (1) of the Civil Aviation Act, 2006 which provides that:

“1. Subject to the provisions of subsection (2) of this section, the following enactments are hereby repealed;

a) Carriage by air (Colonies, Territories and other Trust Territories) Colonial Order 1953;

b) Civil Aviation Act, Cap. 51 LFN 1990;

c) Civil Aviation (Amendment) Act, 1999; and

d) )Nigerian Civil Aviation Authority (Establishment) Act, No. 49 1999.

2. All regulations, by‐laws, orders and subsidiary legislation made under the Civil Aviation Act, 1964 Cap. 511. FN 1990) shall continue to be in force until new regulations, by‐laws, orders and subsidiary legislation are made pursuant to this Act.”

While Section 77 (1) Civil Aviation Act, 2006 repealed the Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953, Section 48 (1) of the Act made the Montreal Convention applicable to international carriage by air in Nigeria. Section 48 (1) provides as follows:

“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 of this Act and as Amended from time to tune, 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.”

b. Carriage by Air (Non-International Carriage) (Colonies, Protectorates and Trust Territories) Order 1953

The Warsaw Convention was made applicable to non-international carriage/flights in Nigeria by virtue of the Carriage by Air (Non-International Carriage) (Colonies, Protectorates and Trust Territories) Order 1953.See Kabo v. Oladipo (2000) 4 KLR (Pt.102) 1413. However, by virtue of Section 48 (2) of the Civil Aviation Act, 2006 as from the date of commencement of the Act the Montreal Convention shall apply to non-international carriage by air within Nigeria. For ease of reference Section 48 (2) of the Act is reproduced below:

“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 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 In the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.”

c. Civil Aviation Act, 2006

The Montreal Convention was incorporated into Nigerian law by virtue of Section 48 of the Civil Aviation Act, 2006 and from the date of commencement of the Act, the Montreal Convention became the basis for establishing of an airline’s liability for both international and non-international carriages or flights in Nigeria. See Section 48 (1) and (2) Civil Aviation Act, 2006; Emirate Airline v. Tochukwu Aforka & Anor. (2014) LPELR-22686(CA).

It is instructive to note that, the Montreal Convention prevails over any rules, which apply to international carriage, by air including the Warsaw Convention. See Article 55 of the Montreal Convention. In Nigeria, Civil Aviation Act, 2006 domesticated the Montreal Convention by repealing the Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953 which domesticated the Warsaw Convention.

The Act also domesticated other international treaties to which Nigeria is a party, including (among others) the Chicago Convention 1944 and the Cape Town Convention 2001.

d. Conflict between International Laws and Domestic Aviation Laws

The Montreal Convention and other Conventions to which Nigeria is a signatory are international treaties, international agreements and compromise principles, which the high contracting States have submitted to be bound by the provisions. They are therefore an autonomous body of law whose terms and provisions are above domestic legislation. Thus, any domestic legislation in conflict with the Conventions is void.

The law is that, where domestic/common law right has 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 cannot be pursued under any other law. Cameroon Airlines v. Abdulkareem (2003) 11 NWLR (pt.830) 1; El Al Israel Airlines Ltd. v. Tseng 919 F. Supp 155 S.D.N.Y. 1996 ; Sidhu v. British Airways (1997) 1 All ER 193; Air France v. Saks 105 S.C. 1338 470 U.S., 392 84 L.Ed 2d 289 (1985).

B. Contract of Carriage by Air

1. Contract between Airline Carriers and Passengers

On the purchase of airline ticket, by a passenger, a contract is established between the passenger and the airline. See: Cameroon Airlines v. Mr. Mike Otutuizu (2011)2 KLR (Pt.291) 373. An airline or carrier of passenger by air is under a duty to deliver a passenger ticket to a passenger which shall contain the following terms or particulars:

a) The place and date of issue;

b) The place and date departure and destination;

c) The agreed stopping places, provided that the carrier or airliner may reserve the right to alter the stopping places, in case of necessity;

d) The name and address of the airline or carrier; and

e) A statement that the carriage is subject to the rules relating to liability established by the Convention.

An airline or carrier is also under a duty to deliver a luggage ticket for luggage other than “hand luggage”.

2. Contract between Consignors and Consignees

Under the Convention, the air waybill or the cargo receipt is prima facie evidence of the conclusion of the contract, of the acceptance of the cargo and of the conditions of carriage mentioned therein. The air waybill or the cargo receipt shall include:

a) an indication of the places of departure and destination;

b) if the places of departure and destination are within the territory of a single State Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place; and

c) an indication of the weight of the consignment.

3. Breach of Contract of Carriage by Air

a. Alteration of Route

Where the agreed route is altered, it amounts to a breach of contract, unless there is justification for such alteration. In the case of Cameroon Airlines v. Mr. Mike Otutuizu (supra), Mr. Otutuizu desired to travel from Lagos to Manzini, Swaziland on a business trip, he bought two tickets endorsed with the agreed stopping places. The tickets were routed as follows: Exhibit A. The flight shall commence from Lagos, Nigeria, with stops in Doula, Cameroon, and then on to Harare. Zimbabwe. Exhibit B is from Harare to Manzini and back to Harare. Contrary to the agreed route, the airline carried Mr. Otutuizu though South Africa. As he had no visa for South Africa to the knowledge of the airline, he was arrested and detained. His $20,000 was taken by Immigration Officials. He was subsequently deported to Lagos. There was no evidence before court that there was any reason to deviate from the agreed stopping places. The court held that, in the absence of justification for flying to Johannesburg, South Africa, there is a clear breach of contract since Mr. Otutuizu was never flown to Manzini, Swaziland.

The trial court found that breach of contract was established by the respondent who was awarded the sum of N80, 000.00 being the value of the tickets and N500,000:00 general damages but declined to award the sum of $20,000.00 claimed by the respondent. The Court of Appeal confirmed the awards made by the trial court and in its wisdom, awarded the respondent the sum of $20,000:00 as claimed by the passenger. The Supreme Court affirmed the judgment of the High Court as affirmed by the Court of Appeal.

b. A Transit Visa

A transit visa is issued to a passenger by a country through which a plane would fly/land enroute the final destination. Transit visa is not issued by the country in which the passenger's journey terminates. It is true that it is the duty of the passenger to get a transit visa, and it is also the duty of the airline to refuse to take a passenger on board who has not got a transit visa.

Airlines insist on passengers having transit visas, but that only applies if the airline informs the passenger on the stops that would be made before the final destination of the aircraft, (and in effect the passenger). Cameroon Airlines v. Mr. Mike Otutuizu (supra)

C. Liability of Airline Carrier

1. An airline's liability to its passengers or customers could arise as a result of:

a) Injury sustained on board an aircraft or

b) Death arising from the course of a journey or

c) Damage or loss of goods

d) Delayed or denied boarding or

e) Interactions in the course of preparing for or the actual conduct of flight operations.

See Harka Air Services (Nig.) Limited v. Keazor Esq. (2011) 6 KLR (Pt.298) 1771 at 1786,para. A, per Adekeye, J.S.C

2. The Liabilities for the carrier are contained in Articles 17 to 30 of Montreal Convention which is the applicable Convention in Nigeria on the subject of illumination and the subject of the references in this Legal Illumination.

a. Liability for Death or Injury of the Passenger on Board an Aircraft (Articles 17 and 21):

Under the Aviation Law, an aircraft accident is an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked in which a person suffers a fatal or serious injury as a result of being in the aircraft. See:Annex 13 to the Chicago Convention, dealing with Aircraft Accident and Incident Investigation and Harka Air Services (Nig.) Limited v. Keazor Esq. (supra) at page 1786, paras. B-C.

Advance Payments: In any case of aircraft accident resulting in death or injury of passengers the carrier shall make advance payments of at least US $30,000.00 (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. Section 48 (3) of the Civil Aviation Act, 2006 and Article 28.

The Montreal Convention eliminated the limits of liabilities set in the Warsaw Convention by introducing a two-tiered liability regime in cases of death or injury to the passenger on board an aircraft:

i. In Nigeria, where the claims of the victim does not exceed 100,000 USD, the carrier shall not be able to exclude or limit its liability.

ii. Where the claim exceeds 100,000 USD the liability of the air carrier is unlimited except there is evidence that the death or injury was not as a result of the negligence or wrongful act or omission of the carrier or its agent or was solely due to the negligence or other wrongful act or omission of a third party.

b. Liability for Delay in the Carriage of Persons:

The liability of the carrier to each passenger in respect of damage caused by delay is limited to 4150 USD. (Article 22, Paragraph 1)

c. Liability for Carriage of Baggage:

The liability of the carrier in the case of destruction, loss, damage or delay of baggage is limited to 1000 USD. (Article 22,Paragraph 2)

The liability of the carrier in respect of damage suffered by a passenger caused by delay or destruction, loss, damage or delay of baggage will be unlimited, if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that in the case of such act or omission of a servant or agent, it is also proved that such servants or agents was acting within the scope of its employment. Paragraph 5 of Article 22.

d. Liability for Carriage of Cargo:

i.Undeclared Interest:

The liability of the carrier in the case of destruction, loss, damage or delay in the carriage of cargo is limited to 20 USD per kilogram, if the value of the cargo is not declared at the time when the package was handed over to the carrier (Article 22, Paragraph 3)

It is instructive to note that, paragraph 5 of Article 22 of the Montreal Convention excludes paragraph 3, which deals with liability in the case of carriage of cargo. The clear intention to exclude carriage of cargo is confirmed by Article 30 which deals with actions brought against a servant or agent of the carrier, who are also entitled to the limits of liability under the Convention just as the carrier, thus in the case of Emirate Airline v. Tochukwu Aforka & Anor. (2014) LPELR-22686(CA) per Iyizoba, J.C.A. held that “from the exclusion of negligence and willful misconduct in the case of carriage of cargo in article 22 (5) and Article 30 (3) I am of the firm view the Montreal Convention did not intend that those concepts should affect the limitation of liability with respect to carriage of cargo” and held further at pages 28-30, paras. E-C, that, the learned trial Judge was wrong in holding that there was no limitation of liability because the appellant was unable to rebut the presumption of negligence or the doctrine of res ipsa loquitor. Iyizoba, J.C.A. illuminated at pages. 33-34, paras. B-C that:

"The concept of negligence or willful misconduct obviously cannot work in the case of loss of cargo. It is difficult to prove willful misconduct as the Plaintiff is not in a position to know how the loss came about and no help is likely to come from the carrier in that regard. That must be why carriage of cargo was excluded in the provisions. It appears the position may have been different under the Warsaw Convention because there are decided authorities where negligence and willful misconduct were considered in cases of loss of cargo.”

ii. Special Declaration of Interest

The only way to escape the limitation of liability with respect to damage or loss of cargo is where the consignor at the time when the package was handed over to the carrier made a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that situation, the carrier will be liable to pay a sum not exceeding the declared sum. Unless it proves that the sum is greater than the consignor's actual interest in delivery at destination.

In interpreting what constituted a special declaration in the case of Emirate Airline v. Tochukwu Aforka & Anor. (supra) his Lordship Iyizoba, J.C.A. held at page 35-36 that:

“It is my view that the special declaration envisaged in Article 22(3) means more than just presentation of the sales invoice and the packing list. The declaration of value ought to be in writing on the airway bill. DW1 in Re-examination had stated categorically that they rely on the Airway Bill and that no value was declared on it. In the case of Rembrandt Jewellery v. Air Canada (1985) O.J. No. 1382, it was held that a verbal statement of value made on the telephone is not a special declaration of value within the meaning of the convention. There is consequently no convincing evidence that the Respondent made a special declaration of the value of the goods. The limitation of liability as contained in the Montreal Convention and the Conditions of Carriage of Cargo of the Defendant is applicable in the circumstances of this case.”

e. Destruction, Damage or Loss that Occurs while a Baggage or Cargo is in the Charge of the Carrier.

Article 18 (3) provides that the carriage by air within the meaning of paragraph (1) of Article 18 comprise of the period during which the cargo is in the charge of the carrier. The fact that the cargo has not been air lifted is consequently of no moment. Once the carrier has taken control of the cargo and issued the airway bill, any loss from then on is covered by the Convention and the limitation of liability clause subject to the stated exceptions as provided in the Convention. Emirate Airline v. Tochukwu Aforka & Anor. (supra)

f. Conversion of Monetary Units

The liability sums mentioned in Articles 21 and 22 shall be converted to Naira at the existing official exchange rate. Article 23.

g. Review of Limits of Liability by the Minister of Aviation

The Minister of Aviation is statutorily empowered by Article 24 to review the limits of liability prescribed in Articles 21, 22 and 23 upon the advice by the Nigerian Civil Aviation Authority at seven year intervals, the first of such review is to take place at the end of the seventh year following the date of entry in force of the Civil Aviation Act, 2006.

h. Higher or No Limits Clause

A carrier may stipulate that, the contract of carriage shall be subject to higher limits of liability than those provided for in the Convention or to no limits of liability whatsoever. Article 25.

i. Lower or Exemption from Liability Clause

Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of the Convention. Article 26.

j. Punitive, Exemplary or any other Non-Compensatory Damages

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under the Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in the Convention without prejudice to the question as to who are the persons who have the right to bring the suit and what are their respective rights. In any such action, punitive exemplary or any other non-compensatory damages shall not be recoverable. Article 29 - See Emirate Airline v. Tochukwu Aforka & Anor. (supra) pages 49-50, paras. A-A ,per Augie, J.C.A.

k. Receipt of Baggage or Cargo without Complaint

The receipt by the person entitled to delivery of checked baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage. Article 31.

l. Time within which to make Complaints

In the case of damage, the person entitled to delivery must complain in writing to the carrier forthwith after the discovery of the damage, and, at the latest, within:

a) two days from the date of receipt in the case of checked baggage;

b) seven days from the date of receipt in the case of cargo; and

c) fourteen days from the date on which the baggage or cargo have been placed at his or her disposal, in the case of delay.

If no complaint is made within the times prescribed, no action shall lie against the carrier, save in the case of fraud on its part.

3. Avoidance of Liability

An airline carrier can avoid or escape liability under or in the following circumstances:

a. Defence of Due Diligence: A carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures. Article 19.

b. Contributory Negligence: Where the damage, death, or injury was caused or contributed to by the injured or dead person's negligence. The carrier shall be wholly or partly be exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage or death. Article 20.

c. Effluxion of Time: The right to damages shall be extinguished, if an action is not brought within a period of two years, calculated from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. See Article 35 ; Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (Pt. 498)124 at 161.

4. Unlimited Liability of Carrier

There are situations in which a passenger will be entitled to damages for breach of contract of carriage by an airline more than the limit set under the Convention , these situations include :

a. Willful Misconduct :

In the case of: Harka Air Services (Nig) Ltd. V. Keazor (2011) 13 NWLR (Pt.1264) 320 at 342,para. A; 360 H. His Lordship, Rhodes-Vivour, JSC stated at page 364 C – D, that:

"Willful misconduct is a deliberate wrong act by a pilot airline staff or its agent which gives rise to a claim for damages by passengers. When staff of an airline act with reckless indifference. Such unacceptable behaviour especially by a professional person amounts to willful misconduct."

A carrier shall not be entitled to avail itself of the provisions of paragraphs 1 and 2 of Article 22 which exclude or limit its liability, if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment. Article 22 (5).

Where the breach occasioning loss is as a result of willful misconduct by a carrier, it loses its entitlement to rely on statutory limitation of liability.In Cameroon Airlines v. Mr. Mike Otutuizu (2011)2 KLR (Pt.291) 373, it was held that the carrier committed willful misconduct, thus the respondent was entitled to more damages than the limit set in Article 25 in the Warsaw Convention now Article 22 (1) and (2) in the Montreal Convention.

In the case of Oshevire v. British Caledonia Airways Ltd. 1990 7 NWLR 507, it was held that where a parcel containing valuable cargo is stolen as a result of concerted action taken within the scope of their employment by one or more employees of the carrier who also most probably stole the documents, the plaintiff would be entitled to more damages than the limit in Article 22, since the carrier had committed willful misconduct. The court held further that, in all other cases spelt out in the Convention the limits on liability must be followed but where there is breach of contract of such a magnitude that it amounts to a willful act, a willful misconduct the limits are no longer applicable.

5. Jurisdiction

An action for damages must be brought, at the option of the Claimant , either :

a. before the court of the domicile of the carrier ; or

b. of its principal place of business; or

c. where it has a place of business through which the contract has been made or before the court at the place of destination.

In respect of damage resulting from the death or injury of a passenger, an action may be brought before:

a. one of the three courts mentioned in above ; or

b. in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.

In Nigeria, the Claims for damages under the Montreal Convention can only be made in the Federal High Court which in Nigeria has exclusive jurisdiction over Aviation related causes of action. See Section 251 (1) K of the Constitution ; Article 33.

Conclusion

All is well that ends well, an air carriage that, ends in the delay,damage or loss of baggage/cargo or death or injury of airline passengers cannot be said to have ended well. Given the fact that, the right to compensation or damages for delayed,damaged or lost baggage/cargo or death or injury of an airline passenger has a time limit,it is advisable that, the affected passenger,consignor or victim promptly consult with a lawyer sound in aviation law.

Akintunde Esan, Legal Practitioner/Consultant, Legal Blogger and Chartered Mediator -

Managing Partner,Ase Olodumare Chambers.

For further illuminations on the right of an airline passenger or consignor in Nigeria to compensation or damages for the delay,damage or loss of baggage/cargo or death or injury of passenger on board , you are advised to contact Akintunde Esan.

AVIATION LAW: REMEDIES FOR DELAYED,DAMAGED OR LOST  BAGGAGE /COMPENSATION FOR DEATH OR INJURY OF  AIRLINE PASSENGERS IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)

RE-SEALING OF THE PROBATE GRANTED OUTSIDE NIGERIA IN NIGERIA

Probate is the legal authority granted to an executor or executrix of a Will to administer the estate of the testator after the Will has been proved and certified by the Probate Court as the authentic Will of the testator. The judicial due process, which leads to the grant of the legal authority to administer the estate of the deceased, is called “proving the will”.

However, the probate granted by a probate court confers on the executor or executrix the power to administer or deal with only the estate or assets within the jurisdiction of the probate court. It does not cover other assets mentioned in the Will that are outside the territorial jurisdiction of the court.

Therefore, in order to make a probate granted outside Nigeria to be effective or enforceable in Nigeria it has to be re-sealed in Nigeria in the State where the property in Nigeria is located. Likewise, in order to make a probate granted in one state in Nigeria to be effective in another state in Nigeria, it must be re-sealed in the probate registry of that other state. Section 2 of the Probate (Re-Sealing) Act 1966 puts that :

“Where the High Court of a State has, either before or after the commencement of this Act, granted probate or letters of administration in respect of the estate of the deceased person, the probate or letters so granted may, subject to the provisions of this Act, on being produce to, and a copy thereof deposited with, the High Court of any other State be re-sealed with the seal of that other court.”

See:High Court (Civil Procedure) Rules of States of Nigeria; Administrator-General v. Airgbadu (1964)MIR 135.

An application for the resealing of Probate or Administration with Will attached granted by a Court outside Lagos State shall be made by the person to whom the grant was made or by any person authorized in writing to apply on his behalf. On any such application:

a. A Tax Clearance Certificate shall be lodged as if the application were one for a grant in the State.

b. The application shall be advertised in such manner as the Judge may direct and shall be supported by an oath sworn by the person making the application.

c. Sureties will be required, where there are special circumstances making it desirable to require sureties.

d. No limited or temporary grant shall be resealed except by leave of the Judge.

e. Every grant lodged for resealing shall include a copy of any Will to which the grant relates or shall be accompanied by a copy certified as correct by or under the authority of the Court by which the grant was made.

f. The Registrar shall send notice of the resealing to the Court which made the grant.

g. Where notice is received in the Registry from outside the State of the resealing of a grant made in the State, notice of any amendment or revocation of the grant shall be sent to the Court by which it was resealed.

It is however, instructive to note that, grants obtained from countries having no reciprocal arrangement with Nigeria such as Commonwealth countries may not be re-sealed in Nigeria.See Section 1 of Probate (Re-sealing) Act which provides that:

Where a court having jurisdiction in matters of probate in a Commonwealth country has, either before or after the commencement of this Act, granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters so granted may, subject to the provisions of this Act, on being produced to, and a copy thereof deposited with, the High Court of a State, be re-sealed with the seal of that Court.

Below is the Probates (Re-Sealing) Act of Nigeria

PROBATES (RE-SEALING) ACT

An Act to make provisions for the re-sealing of pro bates and letters of administration issued and sealed in the High Court of a State by the High Court of another State and to make similar provisions relating to Commonwealth countries.

[7th March, 1966]      [Commencement.]

1.      Re-sealing of probates and letters of administration granted in Commonwealth countries

Where a court having jurisdiction in matters of probate in a Commonwealth country has, either before or after the commencement of this Act, granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters so granted may, subject to the provisions of this Act, on being produced to, and a copy thereof deposited with, the High Court of a State, be re-sealed with the seal of that Court.

2.      Re-sealing of pro bates and letters of administration granted in a State

Where the High Court of a Stale has, either before or after the commencement of this Act, granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters so granted may, subject to the provisions of this Act, on being produced to, and a copy thereof deposited with, the High Court of any other State, be resealed with the seal of that Court.

3.      Conditions to be fulfilled before re-sealing

The High Court of a State shall, before re sealing a probate or letters of administration under this Act, be satisfied-

(a)    that probate duty has been paid in respect of so much, if any, of the estate as is liable to probate duty in that State; and

(b)    in the case of letters of administration, that security has been given in a sum sufficient in amount to cover the property, if any, in that State to which the letters of administration relate,and may require such evidence, if any, as it thinks fit as to the domicile of the deceased
person.

4.      Duplicate or copy of probate, etc., admissible

For the purposes of this Act, a duplicate of any probate or letters of administration sealed with the seal of the court by which the grant was made, or a copy thereof certified as correct by or under the authority of that court, shall be admissible in the proceedings before the High Court of any State.

5.      Security for payment of debts

The High Court of a State may, if it thinks fit, on the application of any creditor, require, before re-sealing, that adequate security be given for the payment of debts due from the estate to creditors residing in that State.

6.      Effect of re-sealing

A probate or letters of administration re-sealed by the High Court of any State under this Act, shall have the like force and effect and have the same operation in the State in which it is re-sealed as if granted by the High Court of that State.

7.      Rules of court

(1)    The Chief Judge of the High Court of any State may make rules of court for regulating the procedure and practice, including fees and costs, in that Court, of and incidental to an application for the re-sealing of a probate or letters of administration under this Act.

(2)    Subject to any modifications and exceptions made by such rules, the enactments for the time being in force in relation to the payment of fees and probate duty shall apply as if the person who applies for re-sealing under this Act were a person applying for probate or letters of administration in Nigeria.

8.      Interpretation
In this Act-

"Commonwealth country" means a country which is a member of the Commonwealth of Nations;

"State" includes the Federal Capital Territory, Abuja.

9.      Short title

This Act may be cited as the Probates (Re-sealing) Act.

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SUBSIDIARY LEGISLATION

No Subsidiary Legislation

If you reside outside Nigeria and you desire to re-seal the probate of a Will in Nigeria, you may contact Akintunde Esan for further illuminations.

Akintunde Esan, Managing Partner, Ase Olodumare Chambers

RE-SEALING OF THE  PROBATE GRANTED OUTSIDE NIGERIA IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)

AKINTUNDE ESAN LEGAL ILLUMINATION CITED BY THE SUPREME COURT

In the case of Hon. Lemanken Aramat v. Harun Meitamei Lempaka & 2 Ors. [2014] eKLR, the Supreme Court of Kenya  (Coram: Rawal, DCJ & V-P, Tunoi, Ibrahim, Ojwang, Wanjala and Njoki, SCJJ.) (Petition No.5 of 2014) in answering the question whether it has the jurisdiction to entertain an appeal from the Court of Appeal on an electoral Petition filed out of time held at  paras.148 and 149 as follows:

“The factor of time and timelines, at the very beginning in the High Court, when the 1^strespondent filed his petition on 10^th April, 2013 – 36 days rather than 28 after final declaration of results on 4^th March 2013 – goes to jurisdiction.

By the principles considered in this Judgment, and by the settled authorities of the Court, the High Court lacked jurisdiction to entertain the 1^st respondent’s petition. Similarly, the Court of Appeal lacked jurisdiction – in several respects, as already noted. Consequently, the determinations made in both superior Courts were null. We would dispose of this cause on the basis of the law of jurisdiction.”

The Supreme Court, went further to hold that, though the High Court lacked the jurisdiction to determine the petition ab initio which consequently. the Court of Appeal lacks the jurisdiction to entertain any appeal of the incompetent Petition from the High Court the Supreme Court of Kenya by virtue of the Kenyan Constitution is invested with the jurisdiction to determine the issues raised in the Petition  for general oversight of the interpretation and application of the Constitution, and of the matters of law of general public importance. The Supreme Court puts it this way:

“Just as the High Court lacked jurisdiction to entertain the original petition, on the grounds of breached timelines, so had the Court of Appeal no jurisdiction to entertain the matter.

However, the law of jurisdiction does not apply in the same way for the three superior Courts: the competence of both the High Court and the Court of Appeal being more definitively regulated, whereas that of the Supreme Court flows from broader empowerment, for general oversight of the interpretation and application of the Constitution, and of the matters of law of general public importance.”
“The 3^rd respondent’s Gazette Notice No. 3155 of 15^th March, 2014 declaring the appellant herein as the duly-elected Member of Parliament for Narok East, is reinstated and sustained.”

With utmost respect to the apex Court, it is submitted that, that Supreme Court erred when it proceeded to determined the Petition after it has ruled that, the Petition was a nullity ab initio and that the Court of Appeal and the High court lacked jurisdiction to hear it.

It is arbitrary  to hold that  “the determinations made in both superior Courts were null. We would dispose of this cause on the basis of the law of jurisdiction.” and hold in another breath that the Supreme Court can invoke its interpretative jurisdiction to assume jurisdiction on a Petition it has already held it lacks jurisdiction to entertain.It amounts to an evitable judicial contradiction. The Supreme Court after conducting a judicial autopsy on the Petition diagnosed that, it was dead on arrival  at the High Court as well as the Court of Appeal for lack of jurisdiction. The apex Court now proceeded to give the Petition the live it never had and still does not have and ended up just creating an evitable case law controversy on whether it is dead or alive.

It is worthy of note however, that one of the seven Justices of the Supreme Court who heard the appeal (Mohammed Ibrahim, SCJ) had a dissenting view on his learned brothers majority judgment.In his dissenting judgment his Lordship made reference to the illumination of  Akintunde Esan on Nigerian jurisprudence, in the paper, The Principles of Law on the Jurisdiction of Courts of Law in Nigeria .The dissenting judgment is reproduced below. 

“THE DISSENTING OPINION OF MOHAMMED IBRAHIM, SCJ

 

[157]  I have extensively read the majority decision of the Court and I am unable to agree with it in totality. The factual rendition of this matter is well captured in the majority decision of the Court. Four issues for determination have been delimited and as the first issue deals with a question bordering on jurisdiction, I proceed to consider it first. 

[158]  In answering the question whether the proceedings before the High Court were void ab initio, two pertinent aspect of the issue crystallizes for determination as raised by the 1^st respondent: when can a question of jurisdiction be raised; and whether parties are bound by their pleadings when raising a question of jurisdiction. 

[159]  Whether the petition at the High Court was filed out of time is not in contention. It is common ground that indeed it was filed 36 days after declaration of results by the IEBC. The Constitutional principle for timely disposal of electoral disputes has been severally reiterated by this Court in its various recent decisions. This principle springs from Article 87(1) of the Constitution which provides: 

“Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes”.

 

[160]  The Constitution sets the tone of this principle when it provides the time within which to lodge an election dispute in both a presidential and a non-presidential election.

Article 140 provides: 

1. A person may file a petition in the Supreme Court to challenge the election of the President-elected within seven days after the date of the declaration of the results of the presidential election.

 

Article 87(2 provide:

Petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.

 

[161]  In drafting Article 87 of the Constitution, the drafters were informed by the dark election petition history in our country where petitions could drag on into the next electoral cycle. This was captured by this Court in the case of Gatirau Peter Munya vs Dickson Mwenda Kithinji, Petition No. 2B of 2014 (Munya case) at paragraph 62 thus: 

“[62]   Article 87 (1) grants Parliament the latitude to enact legislation to provide for “timely resolution of electoral disputes.” This provision must be viewed against the country’s electoral history.  Fresh in the memories of the electorate are those times of the past, when election petitions took as long as five years to resolve, making a complete mockery of the people’s franchise, not to mention the entire democratic experiment.  The Constitutional sensitivity about “timelines and timeliness”, was intended to redress this aberration in the democratic process.  The country’s electoral cycle is five years. It is now a constitutional imperative that the electorate should know with finality, and within reasonable time, who their representatives are.  The people’s will, in name of which elections are decreed and conducted, should not be held captive to endless litigation.”

 

[162]  This principle of timely disposal of election disputes informed parliament in the enactment of Section 76(1)(a) of the Elections Act. However, this section was declared unconstitutional by this Court in the Joho case, for having anchored the 28 days within which one is to file a petition challenging election results in an election other than a presidential election on the publication of the results and not the declaration of results as provided for in the Constitution. 

[163]  The retrospective application of the declaration of section 76(1)(a) of the Elections Act was endorsed by both the Court of Appeal and this Honourable Court. Recently, in the case of Anami Silverse Lisamula v. The Independent Electoral and boundaries Commission & 2 Others, Petition No. 9 of 2014 (Lisamula case), this Court quashed the proceedings of the superior courts after a finding that the petition was filed 35 days after declaration of results. The Court held as follows [at paragraph 124]: 

“On the basis of the foregoing considerations, we find that the petition in the High Court, which was filed 35 days after the date of final declaration of results by the Returning Officer, fell outside the 28 days prescribed by the Constitution; and thus, all the proceedings ensuing from such declaration of results, at the High Court and the Court of Appeal, were a nullity. Neither of the two Courts had the jurisdiction to hear and determine questions founded upon such election results.”

 

[164]  In the Lisamula case, this Court traced how the jurisprudence was developing from the Court of Appeal to this Court on the retrospective application of the declaration in the Joho case. The Court of Appeal had applied it in Suleiman Said Shahbal v. The Independent Electoral and Boundaries Commission and 3 Others, Civil Appeal No. 42 of 2013; and in Paul Posh Aborwa v. Independent Electoral and Boundaries Commission and two others, Civil Appeal No. 52 of 2013. It was also noted that this jurisprudence had been buttressed by the Supreme Court in the Mary Wambui case. 

[165]  Consequently, conscious of its fidelity to its mandate as provided in section 3 of the Supreme Court Act, 2011, the Court ruled that departing from such an emerging jurisprudence without any course for such a fundamental shift will be throwing Kenya’s jurisprudence into disarray. It held as follows [at paragraphs 119-120]: 

“Hence, in the Wambui Case this Court concurred with the Court of Appeal on how the declaration of the unconstitutionality of section 76(1) (a) of the Elections Act should be applied. In taking a common position, the two superior Courts had set a steady jurisprudential foundation on this question.

This Court is not about to depart from this pragmatic perception, which endeavours to sustain a right recognised under the operative state of the law. We are of the opinion that such a pragmatic perception, once reflected in judicial interpretation, is to be regarded as a building-block ofour jurisprudence under the new constitutional dispensation. 

[166]  Counsel for the 1^st respondent has urged that the Court distinguish the Mary Wambui case from the current case. His main argument is that there was no pleading filed on this issue and neither was a prayer sought for striking out the petition contrary to the position in the Mary Wambui case. Counsel’s submissions border on this Court being called upon to depart from its earlier decision. The question then is whether a case has been sufficiently made for the Court to depart from its earlier decision. 

[167]  In Jasbir Singh Rai and three others vs Tarlochan Singh Rai and four others, Petition No. 4 of 2012 (Jasbir case), this Court considered whether and when it can depart from its earlier decision. Adopting the dictum in The Bengal Immunity company Limited v. The State of Bihar and Others[1954] INSC 120, it held: 

“[43] In principle therefore, it follows that this Court, an apex Court, can indeed depart from its previous decision, for good cause, and after taking into account legal considerations of significant weight.

 

[44] Such a latitude for departure from precedent exists not only in principle, and from well-recorded common law experience, but also by virtue of the express provision of the Constitution. Article 163(7) of the Constitution of Kenya 2010 thus stipulates:

 

“All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.”

 

[168]  The Court then laid down principles to be considered in departing from its decision thus:

“61] As times, values, perceptions, and yardsticks of legitimacy and right, keep evolving, however, the Supreme Court retains a competence and discretion, when properly moved, and on weighty grounds, to reconsider its precedents, and to vary them as may be appropriate.

 

[62] Subject to that broad principle, certain directions may, on this occasion, be laid down:

(i) where there are conflicting past decisions of the Court, it may opt to sustain and to apply one of them;

 

(ii) the Court may disregard a previous decision if it is shown that such decision was given per incuriam;

(iii) a previous decision will not be disregarded merely because some, or all of the members of the Bench that decided it might now arrive at a different conclusion;

(iv) the Court will not depart from its earlier decision on grounds of mere doubts as to its correctness.”

 

[169]  I dissented in this case but added further principles for departing from a previous decision thus:

“[136] Therefore, the Court should, in addition, take into account the following principles, when considering whether to depart from its precedents:

i. A decision that is manifestly wrong on the face of it will occasion a departure by the Court. What is manifestly wrong will depend on a conscientious determination by the Court, and will vary from case to case.

ii. Whether a decision is erroneous, and severely affects the lives of people, and impacts negatively on the general welfare of the public.

iii. Upon consideration of such elements, the Court will be ready and willing to depart from an erroneous decision, where the decision is a recent one and the decision has not as yet created property rights around which individuals’ interests have vested.

 

[170]  The 1^st respondent urges the Court to depart from the Mary Wambui case, but has a sufficient basis been laid? Has any of the foregoing principle been met? Counsel contended that the Mary Wambui case was decided on the basis of unique facts before the Court and that the present case raises a different scenario. I do not agree with counsel. This Court’s decisions are binding as provided by Article 163(7) of the Constitution. Consequently, this Court cannot make decisions just to fit a particular case. Its decisions are arrived at after detailed consideration and are meant to finally settle legal controversies and shape the Country’s jurisprudence. This was stated in Jasbir thus: 

“[60] The emerging lesson is that the decisions of Kenya’s Supreme Court, which ought always to be arrived at only after the most conscientious and detailed consideration, will stand as the binding reference-point in the norms governing the judicial process. Such a position is vital for the maintenance of the certainty, predictability, and jurisprudential standards that sustain the principles of the Constitution, and the rights and duties flowing from the legal set-up, and which provide sanctity for the legitimate actions of the people.”

 

[171]  Suffice it to state that a decision of this Court is always intended to settle a fundamental question of law and has to be departed from only after a sufficient ground has been established. In the present case, I do not think that the 1^st respondent has put forward a compelling case to justify the Court not following the Mary Wambui decision. 

[172]  Further, counsel for the 1^st respondent contended that parties are bound by their pleadings and the appellant had not pleaded this ground. I agree with counsel that indeed the correct legal position is that a party who comes to court to seek redress is bound by his pleadings. Counsel citedFerdinard Ndung’u Waititu vs Independent Electoral & Boundaries Commission & 8 Others(2013) eKLR in support of his submissions. In that case, Justice R. M. Mwongo, PJ held: 

“The third principle is that, as in all litigation, a petitioner is bound by his pleadings. It is common that a petitioner will file a petition and will in the course of the proceedings veer away from the initial track. This puts the opponents into a difficult position in knowing what the real case they must answer is, and what it is the court must determine. The point was well put by Justice kimaru in MAHAMUD MUHUMED SIRAT V ALI HASSAN ABDIRAHMAN AND 2 OTHERS NAIROBI PETITION NO. 15 OF 2008 [2008] eKLR where he stated that:

 

“From the outset, this court wishes to state that the petitioner adduced evidence, and even made submissions in respect of matters that he has not specifically pleaded in his petition. It is trite law that a decision rendered by a court of law shall only be on the basis of the pleadings that have been filed by the party moving the court for appropriate relief. In the present petition, this court declined the invitation offered by the petitioner that required of it to make decisions in respect of matters that were not specifically pleaded. This Court will therefore not render any opinion in respect of aspects of the petitioner’s case which he adduced evidence but which were not based on the pleadings that he has filed in court, and in particular, the petition.”

 

[173]  The honourable Judge of the High Court is right and I am not about to depart from this legal principle. The Court of Appeal in Independent Electoral and Boundaries Commission & another v. Stephen Ndambuki Muli & 3 others, Elections Petition No. 2/2013 reiterated this position citing and endorsing the dictum of Lord Denning in JONES Vs. NATIONAL COAL BOARD [1957]2 QB 55 that; 

“In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries.”

 

[174]  While this is the case though, I would like to state that this principle refers to issues as framed by parties and reliefs that border on the rights and obligations as between parties. However, a question of nullity of proceedings that borders on jurisdiction does not qualify as settling or calling for a determination as regards rights and obligations as between parties in litigation. It is a legal question. This is why it can be raised at any time, by any party and even by the court itself. 

 

[175]  Commenting on Nigerian jurisprudence, Akintunde Esan, in his paper, The Principles of Law on the Jurisdiction of Courts of Law in Nigeria writes: 

“The jurisdiction of a court of law is a very hard matter of law which is donated by the Constitution and the enabling statute. A court cannot confer or vest in itself jurisdiction not specifically conferred on it by a statute or the Constitution”.

 

Mr. Akintunde  continues and emphasis the centrality of jurisdiction in litigation citing Nigerian case law thus: 

“In Nasir v. Kano State Civil Service Commission, per Ogbuagu, JSC in his concurring judgement held as follows:

 

It is now firmly settled that issue of jurisdiction or competence of a court to entertain or deal with a matter before it, is very fundamental. It is a point of law and therefore, a rule of court, cannot dictate when and how, such point of law can be raised. Being fundamental and threshold issue of jurisdiction, it can be raised at any stage of the proceedings in any court including this Court”.(Emphasis provided)

 

[176]  Consequently, where such a jurisdictional question is raised, a challenge of parties being bound by their proceedings cannot rightly lie. The law is the preserve of the courts which courts take judicial notice of. A party does not have a ‘monopoly’ of the law. The court does have this monopoly as it applies the law to a set of facts in reaching its decision. Hence, a court of law can rightly raise a legal question of jurisdiction even where no party raises such a question. Recently, the Court of Appeal did this in Ferdinard Ndungu Waititu v. The Independent Electoral and Boundaries Commission and eight others, Civil Appeal No. 324 of 2013, in which Kiage, JA observed with regard to the competency of the appeal thus:

 

“When the appeal first came for hearing before us, we raised suo motu, a question on the competence aspect (sic) in light of section 85A of the Elections Act and invited the parties to address us on the same. We in particular drew the attention of the parties to the decision of this Court in PATRICK NGETA KIMANZI VS MARCUS MUTUA MULUVI & OTHERS, CIVIL APPEAL NO. 191 OF 2013…All  counsel expressed the view that the question was an important one on which they needed time before addressing us.

…

As I have previously mentioned this was not an issue raised by any of the respondents. It is the Court itself that sought the parties’ views on the matter since it goes to the very foundation of the appeal.”

[177]  In Ocheja Emmanuel Dangana v Hon. Atai aidoko Aliusman & 4 Others, SC. 11/2012 (The Dangana case) Judge Bode Rhodes-Vivour, JSC said thus: 

“A successful preliminary objection terminates the hearing of the appeal…Jurisdiction has always been a threshold issue. It must be decided once it is raised and quickly too. A trial or a hearing conducted without jurisdiction amounts to a wasted effort, a complete nullity no matter how well the matter was decided. That explains why the issue of jurisdiction can be raised at any time, in the trial court, on appeal, or in the Supreme Court for the first time.” (Emphasis provided).

 

[178]  Consequently while in agreement with counsel for the 1^st respondent that a party is bound by his pleadings, I hasten to add that a question of competence of proceedings which borders on jurisdiction of the court to admit such proceedings does not fall to be left to the discretion of parties’ pleadings as the same is a matter that can be taken up by the Court suo motu. It is true that the appellant in this matter did not plead for dismissal of the appeal on the ground of nullity but raised it in submissions. However, I have no doubt in my mind that the record of appeal having been filed in this Court, the Court will have perused the same on its own accord and upon establishing the time question, raised it with the parties. A court is bound to always satisfy itself whether or not it has jurisdiction to hear and determine a matter before it; and to also warn itself that the matter before it is one which it should admit under its jurisdiction for consideration. 

[179]  I reiterate this Court’s noble but sacred mandate under section 3 of the Supreme Court Act, 2011, to establish a pragmatic indigenous jurisprudence founded on good governance and the rule of law. Such jurisprudence cannot be founded on divergent decisions in cases where the facts are similar. Consequently, I am satisfied that this matter was filed outside the 28 days required by the law. This is a fact which as I have already stated, was not disputed by the respondents. The challenge that this issue was not pleaded does not hold given the holding of the majority and my holding herein.

[180]  The question which this Court ruled on in Mary Wambui case and in the Lisamula case is one and clear: the petition at the High Court was filed out of time. This is the same question that we are called upon to rule on in this case. The common-law doctrine of precedent stipulates that it will be for the good of all that similar cases in facts are determined in a similar manner. This is what this Court addressed in the Lisamula case when it emphasised the need for coherence of this Court’s decisions thus [at paragraph 123]: 

“The instant matter was pending in the Court of Appeal, and thus, the finality clause does not apply; the matter falls for determination squarely on the precedent set in the Mary Wambui Case. Just as in the Jasbir Rai Case, this Court has recently affirmed the need for certainty in the interpretation and application of constitutional provisions. That principle should be upheld in the application of judicial precedents. The learned Chief Justice in his concurring opinion, in the Gatirau Peter Munya Case, Petition No. 2B of 2014, thus observed (paragraph 233):

 

“Ultimately, therefore, this Court as the custodian of the norm of the Constitution has to oversee the coherence, certainty, harmony, predictability, uniformity, and stability of the various interpretative frameworks duly authorized. The overall objective of the interpretive theory, in the terms of the Supreme Court Act, is to “facilitate the social, economic and political growth” of Kenya” [emphasis supplied].”

 

[181]  The upshot of the foregoing is that I agree with the majority finding that the petition at the High Court in this matter was filed outside the constitutional timelines of 28 days after the declaration of results. 

[182]  Hence, all the proceedings at the High Court and the Court of Appeal that sprung from a petition that was a nullity are also null and void. Hence this Court does not have jurisdiction to entertain this appeal. I refer to the recent findings in the Lisamula case which this Court held that [at paragraph 125-126]: 

“Further, having found that these proceedings were a nullity, we hold that we have no jurisdiction. This Court cannot entertain a matter that is null and void ab initio as a court of law cannot legitimately consider an issue in which it has already declared that it has no jurisdiction. We have severally cited the dictum of Nyarangi, JA in the Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 that jurisdiction is everything and where a court of law holds it has no jurisdiction, it should down its tools. In the Mary Wambui case that was the legitimate route that this Court took once it found that the proceedings were a nullity and it had no jurisdiction. Such a pragmatic approach cannot be departed from in this matter.

Consequently this Court’s pen rests”.

 

[183]  For the foregoing reasons, I concur with the majority that the proceedings in the High Court were a nullity ab initio, having been premised on a petition filed out of time. On the basis of the“Lillian S” case, this Court should have downed its tools and not delve into any other question on their merits. With much respect and deference, I would disagree with my brothers and sisters in the majority when they did not rest the matter at this point and went ahead to entertain consideration of other issues on merit. 

[184]  In my view, the decision of the majority with regard to not downing their pens upon making a determination that the High Court proceedings were a nullity, and delving into other questions of merit, is a departure from the Mary Wambui case and the Lisamula case. While this Court has the jurisdiction and discretion to depart from its past decision, as I have already discussed in this opinion, there is no justification to do so in this case. Both in the Mary Wambui case and the Lisamula case, there were other questions which this Honourable Court identified as falling for determination. All those questions had a ‘great constitutional’ bearing as the Supreme Court is bestowed with jurisdiction and the mandate under section 3 of the Supreme Court Act, No. 7 of 2011 to settle constitutional questions with finality. However, this Court held, and rightly so, that having found that the proceedings in the two cases were a nullity abi initio, the Court will down its tools; and it did not proceed to determine the other framed issues. 

[185] My brothers and sisters in the majority have cited with approval the sentiment of Mutunga, C.J. & P. in the Jasbir Singh Rai case [paragraph 81]: 

“[I]t will be good practice for this Court to take every opportunity a matter affords it, to pronounce [itself] on the interpretation of a constitutional issue that is argued either substantively or tangentially by parties before it.”

 

While I agree with the general principle enunciated by the Honourable Chief Justice that the Supreme Court should be ready to pronounce itself on the interpretation of a constitutional issue, I do not humbly think that the context of this present case do give rise to a constitutional moment for the Court to seize and go into any other issues after making a finding that the petition was a nullity ab initio and that the  Court of Appeal and the High court lacked jurisdiction to hear it. 

[186]  With tremendous respect to my brothers and sisters, it is my opinion that such a constitutional moment as contemplated by the Honourable Chief Justice can only arise where the Court is satisfied that it has jurisdiction. Jurisdiction is everything and as I held in the Jasbir Singh Rai case, such a moment will only arise where the matter is rightly before the Court: the matter should be substantively brought before the Court and not tangentially. 

[187]  Hence, it is my opinion that the Court should have stopped upon making the finding it made on this first issue alone. As I have agreed with the majority only in respect to the issue of nullity, I endorse all the final orders proposed by the majority as the orders of the Court.” 

Lemanken Aramat v Harun Meitamei Lempaka & 2 others [2014] eKLR

 

If you are interested in reading the complete  judgment including the majority decision as published by National Council for Law Reporting (Kenya Law) click this link /kenyalaw.org/caselaw/cases/view/100726/