J.r. De Beijer Vs W.a.a.c. Nigeria Ltd & Other (1969)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.N.

The appellants who were the defendants in the High Court of the Benin Judicial Division have appealed against the judgment of that court on 10th March, 1966, awarding damages of £1,737.11s.4d., to the plaintiff in a claim for £5,824.13s.0d., against (1) the two defendants for loss of use of and damage to the plaintiff’s Piper aircraft sustained by reason of the negligence of the 2nd defendant (Hayes) in the management and control of a twin engined turbo-propelled aircraft at Benin airport on or about 28th August, 1963 and for the cost of survey of the damage sustained and (2) against the defendant Company for the damage to the plaintiff’s said aircraft on the date and the place aforesaid pursuant to the provisions of section 10 (2) of the Colonial Civil Aviation (Application of Act) Order 1952.

It will be observed that the claim for negligence is against the two defendants whilst the claim under the Colonial Civil Aviation (Application of Act) Order 1952 is against the 1st defendant only. As stated above, judgment was entered for a sum of £1,737.11s.4d., on the ground of negligence. The learned Chief Justice also held that the Order of 1952 did apply and 1st defendant was liable. The defendants have appealed against this judgment and filed three grounds of appeal as follows:-

“1. The learned trial judge having retired from the Bench and a new Chief Justice having been appointed to succeed him he was functus officio when he delivered the judgment on the 10th March, 1966.

2. The learned trial judge misdirected himself in law when he held the defendants/appellants liable by virtue of section 10 (2) of the Colonial Civil Aviation (Application of Act) Order 1952.

3. The judgment is against the weight of evidence.”

The plaintiff has filed a cross-appeal and the three grounds read:-

“l. The learned judge mis-directed himself in law when he deducted from the damages that he found proved the sum of £893.0s.0d., being monies received by the plaintiff/appellant from his insurers since such sums are immaterial so far as a third party is concerned and cannot be pleaded by him in reduction of damages and neither should they be taken cognizance of by the court.”

2. The learned judge was incorrect in fact when he refused to accept certain items claimed and proved by the plaintiff/respondent (and not challenged by the defendants/appellants) by reason of the fact that they were not supported by documentary evidence.

3. The damages awarded were too low in view of the evidence tendered and unchallenged at the trial.”

The facts as argued before the learned Chief Justice show that on 28th August, 1963, three planes arrived at different times and parked at the Benin airport. The plaintiff’s plane was a Piper PA18 Super Cub. The defendants’ plane which arrived last was a Fokker Friendship F27 which was a large plane. The 2nd defendant who piloted this plane parked beside the Piper plane with its nose pointing in the same direction as the other planes but in front of the nose of the Piper, and its tail about 60-80 feet from the nose and its right engine in front of the left wing of the Piper from the latter’s cockpit seat. The Fokker Friendship took off first and in doing so instead of taxi-ing out cautiously by applying power to his left engine only as the right engine was so near the small plane, he applied power to both engines of his plane.

As a result the propeller thrust or the slip-stream from the right engine of the larger plane (the Fokker Friendship) lifted the left wing of the Piper high resulting in the right wing tipping over and crashing on to the tarmac. At that time, to the knowledge of the 2nd defendant, there were no lashing facilities at Benin Airport otherwise the plaintiff could have lashed down his plane which would have made it more secure. In consequence of this act by the 2nd defendant, the right wing of the Piper plane was bent upwards and the control surface on the right wing also bent upwards. The right tip of the tail had thereby touched the ground and the fabric was slightly dam-aged. It therefore was unfit to fly.

The learned Chief Justice accepted the opinion of witnesses that the 2nd defendant had failed to observe the presence of the other aircraft before starting his two engines or failed to appreciate the effect of his slip stream, a duty which a pilot must observe. Of the three grounds of appeal filed, ground one was abandoned. Mr. Sowemimo arguing the second ground of appeal refers to Schedule I, Part IV, section 10 (2) of the Colonial Civil Aviation (Application of Act) Order 1952 which, apart from the proviso, reads:-

“(2) Where material loss or damage is caused to any person or property on land or water by, or by a person in, or an article or person falling from, an aircraft while in flight, taking off or landing, then unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage shall be recoverable without proof of negligence or intention or other cause of action, as if the loss or damage had been caused by the wilful act, neglect, or default of the owner of the aircraft.”