THE REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA VS NIGERIAN AIRSPACE MANAGEMENT AGENCY

CORAM

MARY UKAEGO PETER-ODILI

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN

TOHNINYANG OKORO

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN

PARTIES

THE REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA APPELLANTS

NIGERIAN AIRSPACE MANAGEMENT AGENCY

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

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

1. 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?

2. 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.

3. 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?

RATIONES DECIDENDI

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

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

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

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

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

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

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

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

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

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

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

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

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

CASES CITED

Adah vs N.Y.S.C (2001) 1 NWLR (PT 963) 65,Adegoke Motors Ltd  vs  Adesanya (1989) 3 NWLR (PT 109) 250 @ 266Adewumi v Attorney- General, Ekiti State (2002) 2 NWLR (PT. 751) 474Adisa vs  Oyinwola (2000) 10 NWLR (PT 674) 116 @174Abubakar vs Yar”adua (2008) 19 NWLR (PT 1120) I @ 150 -152A.G. Ektiti State  vs  Adewummi & Anors (2002) 1 SC @ 63Akai Akpan Udo Ekwere vs The State (1981) 9 SC 3Ansaldo (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) 365Fawehinmi vs Nigerian Bar Association(NO 2) (1989) 2 NWLR (PT 105) 558@ 595Imonikhe 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 26Oguma Associated Companies  (Nig) Ltd  vs I.B.W.A (1988) 1 NWLR (PT 73) 658 @ 673Oja v. Ogboni (1976) 1 NMLR 95Ojokolobo vs Alamu (1987) 3 NWLR (PT 61) 377Okolo v Union Bank of Nigeria Ltd (1999) 10 NWLR (pt. 623)Oredoyin vs Arowolo (1989) 4 NWLR (PT 114) 172 @ 211Oruonye Onwunali vs The State (1982) 9 SC 48Rotimi  vs McGregor (1974) 11 SC 133 @152Ugwu vs Ararume (2007) 12 NWLR (PT 1048) 367 @519,Shell Petroleum Development Co. Nig. Ltd v Ambah (1999) 3 NWLR (Pt.593) 1Sneade 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 

CLICK HERE TO READ FULL JUDGMENT