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February 26, 2014Latest Supreme Court Judgments – March 14th, 2014
March 19, 2014THE REGISTERED TRUSTEES OF THE AIRLINES OPERATORS OF NIGERIA VS. NIGERIAN AIRSPACE MANAGEMENT AGENCY
LEGALPEDIA CITATION: LER[2014] SC. 149/2006
AREA OF LAW- LEGAL PERSONALITY, INTERPRETATION OF STATUTES
SUMMARY OF FACT
The Plaintiff/Appellant commenced an action by originating summons against the Defendant/Respondent at the Federal High Court wherein the Plaintiff/Appellant claimed certain reliefs including a declaration that the payment of 5% Ticket Sales Charges by the Plaintiff/Appellant is lawful and that the Defendant/Respondent had no right to charge domestic en route charges. It also sought a declaration that the Defendant/Respondent has no power to vary arbitrary charges paid by the Plaintiff/Appellant, it further sought a perpetual injunction against the Defendant/Respondent from further charging it levies not provided for by law. The Suit was instituted in the name of “Airline Operators of Nigeria” and the Defendant/Respondent reacted by filing a counter affidavit. Both parties also filed and exchanged their written addresses for judgment. Before judgment was delivered the Plaintiff/Appellant sought an order at the trial Court for leave to amend its name in the Summons and same was granted. At the trial Court, the Plaintiff/Appellant’s claim succeeded on the ground that the Defendant/Respondent had no statutory power to levy the domestic en-route charges, the trial Court declined to grant the declaratory reliefs but granted the injunctive relief. The Defendant/Respondent being dissatisfied with the decision appealed to the lower Court. At the lower court, the Appellant herein filed a notice of preliminary objection contending that the appeal is not arguable. The Respondent herein filed a reply thereto. At the hearing, of the appeal, the Appellant was absent but the Counsel for the Respondent urged the court to strike out the Preliminary Objection for failure of the Appellant to file a formal notice and to argue it orally in compliance with Order 3 Rule 15 of the Court of Appeal Rules 2002. The lower Court held the preliminary objection incompetent and discountenanced same. The Court proceeded to determine the appeal on its merit and allowed it while it set aside the decision of the trial Court. Further dissatisfied, the Appellant have lodged the instant appeal.
HELD
Appeal dismissed
ISSUES FOR DETERMINATION
Whether the appeal at the lower court was not incompetent in view of the fact that the respondent therein is not a person / body known to law
Whether the lower court was not in error top have struck out the appellant as respondent preliminary objection on the basis that it was not in compliance with Order 3 Rules 15 of the Court of Appeal Rule 2002 when the number of the days between the filing of the preliminary objection in the brief and hearing of the appeal exceeded three days.
Whether the lower court was right in holding that section 11(b) (iv) of the Nigeria Airspace Management Agency Act empowers the Respondent as Appellant to levy in addition to ticket sales charges, “domestic en-route charges.
RATIOS
AMENDMENT-EFFECTIVE DATE THEREOF
“An amendment takes effect from the date of the original document sought to be amended and this applies to every successive further amendment of which ever nature and at whatever stage it is made”. PER OKORO JSC
CIVIL LITIGATION- DUTY OF COURT THERETO
“It is trite that in civil litigation, courts have a duty to aim at, and to do substantial justice and allow formal amendment as are necessary for the ultimate achievement of justice and the end of litigation. PER OKORO JSC
NON-EXISTING PERSON-WHETHER CAN INSTITUTE AN ACTION IN COURT
It is now well settled that a non –existing person, natural or artificial cannot institute an action in court ,nor will an action be allowed to be maintained against a Defendant, who as sued , is not a legal person. PER OKORO JSC
JURISTIC OR LEGAL PERSONALITY- HOW DONATED
Juristic or legal personality can only be donated by the enabling law. This can either be the Constitution or Statute. If the enabling law provides for a particular name by way of juristic or legal personality, a party must sue or be sued in that name .He cannot sue or be sued in any other name. PER OKORO JSC
APPEAL- NATURE OF
“It is trite that an appeal is a continuation of the case from the court below. It does not initiate a fresh case”. PER OKORO JSC
APPEAL-WHERE WRONGLY HEADED-EFFECT OF
“Where parties to an appeal are not in doubt but the appeal is wrongly headed, as was done at the court below, it cannot affect the competency of the court to hear the appeal on its merit”. PER OKORO JSC
MISNOMER- MEANING OF
“A misnomer can be said to be a mistake in name , i.e giving incorrect name to a person in the writ of summons .It occurs when a mistake is made as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person”. PER OKORO JSC
MISNOMER-NATURE OF THAT CAN VITIATE PROCEEDINGS
“A misnomer that will vitiate the proceedings would be such that will cause reasonable doubt as to the identity of the person intending to sue or be sued”.PER OKORO JSC
APPEAL- IMPROPRIETY OF PARTIES SETTING UP A NEW CASE ON APPEAL
“It is trite that a party cannot be allowed to set up a new case on appeal other than that which it presented at the trial court. There must be consistency in this regard. PER OKORO JSC
INTERPRETATION OF STATUTE- CARDINAL PRINCIPLE OF
“The cardinal principle of interpretation of statute is that where the words used in a statute are clear and unambiguous the courts should give them their ordinary natural and literal meaning in order to establish the intention of the law maker. It is only where the ordinary or literal meaning of the clear and unambiguous words fails to bring out the intention of the lawmaker or leads to an absurdity that resort is had to constructive interpretation”. PER OKORO JSC
APPEAL- NATURE OF
“It is now settled law that an appeal is a continuation of the case from the court of trial and the appeal does not stand alone as an independent process without the linkage to the proceedings in the court of first instance”. PER PETER-ODILI JSC
AMENDMENT –WHEN GRANTED-EFFECT OF
“The law is settled that once an amendment is granted, what stood before the amendment is no longer material before the court”. PER KEKERE- EKUN JSC
AMENDMENT-EFFECTIVE DATE OF AN AMENDMENT
“It is also settled law that an amendment takes effect from the date of the original document sought to be amended. Once the amendment is made the action will continue as if the amendment had been inserted from the beginning”.PER KEKERE- EKUN JSC
OBJECTION-FAILURE TO MOVE SAME-EFFECT OF
“The effect of failure to move the objection during the oral hearing of the appeal is that it is deemed abandoned”. PER KEKERE- EKUN JSC
INTERPRETATION OF STATUTES- DUTY OF THE COURT
“The duty of the court when interpreting legislation is to read the enactment as a whole in order to give a sensible meaning to the words used and thereby determine the intention of the law maker. The words used in a statute must be given their natural or ordinary meaning”. PER KEKERE-EKUN JSC
CASES MENTIONED
Adah vs N.Y.S.C (2001) 1 NWLR (PT 963) 65,
Adegoke Motors Ltd vs Adesanya (1989) 3 NWLR (PT 109) 250 @ 266
Adewumi v Attorney- General, Ekiti State (2002) 2 NWLR (PT. 751) 474
Adisa vs Oyinwola (2000) 10 NWLR (PT 674) 116 @174
Abubakar vs Yar”adua (2008) 19 NWLR (PT 1120) I @ 150 -152
A.G. Ektiti State vs Adewummi & Anors (2002) 1 SC @ 63
Akai Akpan Udo Ekwere vs The State (1981) 9 SC 3
Ansaldo (Nig) Ltd vs N.P.F.M.B (1991) 2 NWLR (PT 174) 392.
Anyaegbunam vs Osaka (2000) 5 NWLR (PT 657) 386,
Emerpo J. Continental Ltd vs Corona S. & Co (2006) 11 NWLR (PT 991) 365
Fawehinmi vs Nigerian Bar Association(NO 2) (1989) 2 NWLR (PT 105) 558@ 595
Imonikhe v Attorney-General, Bendel State (1992) NWLR (Pt. 248) 396)
Katto vs CBN (1999) 6 NWLR (PT 607) 390 @ 412 .
Nofiu Surakatu vs Nigeria Housing Development Society Limited (1981) 4 SC 26
Oguma Associated Companies (Nig) Ltd vs I.B.W.A (1988) 1 NWLR (PT 73) 658 @ 673
Oja v. Ogboni (1976) 1 NMLR 95
Ojokolobo vs Alamu (1987) 3 NWLR (PT 61) 377
Okolo v Union Bank of Nigeria Ltd (1999) 10 NWLR (pt. 623)
Oredoyin vs Arowolo (1989) 4 NWLR (PT 114) 172 @ 211
Oruonye Onwunali vs The State (1982) 9 SC 48
Rotimi vs McGregor (1974) 11 SC 133 @152
Ugwu vs Ararume (2007) 12 NWLR (PT 1048) 367 @519,
Shell Petroleum Development Co. Nig. Ltd v Ambah (1999) 3 NWLR (Pt.593) 1
Sneade vs Watherton (1904) 1 K.B. 295 @ 297,
Tukur vs Government of Gongola State (N0 2) (1998) 4 NWLR (PT 117) 517,
STATUTES REFERRED TO
Court of Appeal Rules 2002
Nigeria Airspace Management Agency Act 2004
DR. USENI UWAH & ANOR VS EDMUNDSON T. AKPABIO & ANOR
LEGALPEDIA CITATION: LER[2014] SC. 86/2008
AREAS OF LAW – PARTNERSHIP, AGENCY RELATIONSHIP, CIVIL ACTION
SUMMARY OF FACT
The Plaintiffs/Respondents commenced an action at the trial court against the Defendants/Appellants for a declaration that the partnership of the Plaintiffs and the Defendants in Mfon Abasi Nursery/Primary School is still in existence and not yet dissolved, a declaration that they the Plaintiffs are still part owners of the School and are entitled to jointly manage same with the Defendants and share in the profits and liabilities, an injunction restraining the Defendants from continuing the management of the School until partnership is dissolved, and order of court appointing an officer of Akwa-Ibom State judiciary as a receiver to manage the affairs of the School for both parties and to dissolve the partnership and share the proceeds equally to the Partners. The Defendant/Appellants at the trial court filed a defence and counter- claim seeking a declaration that they are entitled to possession of the school, an order for a refund of monies wrongly paid to the Plaintiffs, an injunction and a declaration that the said school belongs to them. The trial court found for the Plaintiffs and dismissed the Defendants’ counter-claim. Dissatisfied, the Defendants appealed to the lower court (Court of Appeal, Calabar division) which affirmed the trial court’s judgment. Still dissatisfied, the Defendant/Appellants have now appealed to this court.
HELD
Appeal dismissed
ISSUES FOR DETERMINATION
Whether the Learned Justices of the Court of Appeal were right in upholding the finding and action of the Learned Trial Judge, of excluding and/or rejecting evidence of further acts, meetings, decision and/or agreements made, held transpired and/or taken by or between the Appellants and Respondents, subsequent to exhibits 3 and 4, on the basis of exclusion of oral evidence by documentary evidence under section 132 of the Evidence Act, thereby resulting in the dismissal of the Appellant’s appeal.
Whether the Learned Justices of the Court of Appeal were right in refusing to hold the Partnership liable and committed to the action of the Solicitor engaged by both the Appellants and the Respondents to dissolve the same and sell the school (the subject of the partnership), of collecting the agreed deposit for the sale of the school to and from the Appellant and for extending the deadline for the payment thereof, under the law of Agency after upholding the finding of the learned Trial Judge that the said Solicitor was a common enemy to both the Appellant and the Respondents.
RATIOS
PERVERSE DECISION-WHEN IS A DECISION PERVERSE?
A decision is said to be perverse see,Adimora v. Ajufo (1988) 3 NWLR (PT 80) 1 and Ihewuezi v. Ekeanya (1989) 1 NWLR (pt96) 239, where:
(a) It is speculative and not based on any evidence or
(b) The court took into account matters which it ought not to have taken into account or
(c) The court has ignored the obvious PER MUSA DATTIJO MUHAMMAD JSC
CIVIL SUIT- HOW DECIDED-PRINCIPLE THEREOF
“Civil suits are decided on the balance of probabilities; put differently on the preponderance of evidence. The principle requires that the totality of the evidence of both sides is taken into account and appraised in determining each side’s quantum. An imaginary scale is then used to determine which side’s evidence is”. PER MUSA DATTIJO MUHAMMAD JSC
AGREEMENT-BINDINGNESS OF ON PARTIES
“The principle has equally become trite that an agreement, where one is established to exist, necessarily binds the parties thereto. Whenever parties enter into an agreement in writing they are bound by its terms and neither the parties nor the court is legally allowed to read into the agreement terms on which the parties did not agree.” PER MUSA DATTIJO MUHAMMAD JSC
AGENCY RELATIONSHIP-WHERE CONTRACT IS MADE BY AN AGENT ACTING WITHIN THE SCOPE OF HIS AUTHORITY FOR HIS DISCLOSED PRINCIPAL-WHETHER CAN SUE OR BE SUED UPON THE CONTRACT
“As a general rule, a contract made by an agent acting within the scope of his authority for his disclosed principal, in Law, is the contract of the principal and the principal not the agent is the person to sue or be sued upon the contract.”PER MUSA DATTIJO MUHAMMAD JSC
CONCURRENT FINDINGS OF FACT- WHEN AN APPELLATE COURT CAN INTERFERE THEREWITH
“An appellate court’s interference with concurrent findings of fact is only allowed where the findings are shown to be perverse or that same is not the result of a proper exercise of discretion.” PER MUSA DATTIJO MUHAMMAD JSC
CONCURRENT FINDINGS OF TWO LOWER COURTS-ATTITUDE OF APPELLATE COURTS WITH RESPECT TO INTERFERENCE OF
“The law had long been settled that once the findings of two lower Courts are reasonably justified by the evidence and no error in law, substantive or procedural, that leads to a miscarriage of justice is made by the lower Courts, this Court will not interfere with such concurrent findings of facts but must treat them with due respect”. PER MAHMUD MOHAMMED
REVIEW OF EVIDENCE-CONDITIONS WHERE THE SUPREME COURT CAN REVIEW EVIDENCE
“The well settled practice of this court is to be slow, or decline to review the evidence a third time unless there is proof of miscarriage of justice or a violation of some principle of law or procedure, or if the finding is found to be perverse”. PER BODE RHODES-VIVOUR JSC
CASES MENTIONED
ACN v Lamido & 4 ors 2012 2 SC (Pt. ii) p. 163
Adimora V Ajufo (1988) 3 NWLR (PT. 80) 1
Are v Apaye (1990) 2 NWLR (Pt 132) 298
Atolagbe V Shorun (1985) NWLR (PT. 2) 360
Balogun V Akanji (1988) 1 NWLR (PT. 70)
Dibiamaka v Osakwe (1989) 3 NWLR (Pt. 107) 101
Dr. Tunde Bamgboye V University Of Ilorin & Anor (1999) 10 NWLR (PT. 622) 290 at 329
Iroegbu v. Okwordu (1990) 6 NWLR (Pt. 159) 643
Koik V Magnusson (1999) 8 NWLR (PT. 615) 492 AT 514
Larmie V D.P.M.S LTD (2005) 18 NWLR (PT. 958) 438
Military Gov. of Lagos State & 4 Ors v. Adeylga & 6 Ors 2012 2 SC (pt. 1) p.68
Niger Progress Ltd V North East Line Corporation (1989) 3 NWLR (PT. 107) 68
Odutola V Alleru (1985) 1 NWLR (PT. 1) 92
Ojibah V Ojibah (1991) 5 NWLR (PT 191) 296 AT 314
Osuji v. Ekeocha (2009) 16 NWLR (pt 1166) 81
Rabiu V. The State (1980) 8-11 SC 85
R-Benkay Nig. Ltd. v. Cadbury Nig Plc 2012 3 SC (Pt. iii) P 169
Samuel Osigwe V. PSPLS Management Consortium Ltd & Ors (2009) 3 NWLR (PT. 1128) 378
2 Comments
I love this .
This is a well considered judgement.