Arjay Limited & Ors V. Airline Management Support Limited (2000)

LawGlobal-Hub Lead Judgment Report

OMAGE, J.C.A.

There are three appeals by the appellant against the ruling of the Federal High Court Kano, presided over by the Honourable Justice Abdullahi Mustapha. Appeal number one is against the decision made by the court on a motion ex parte on 14th April, 1997.

Appeal number two is against the ruling made by the court on 21st March, 1997.

Appeal number three is against the ruling of the court made on 17th June, 1997.

The preamble is as follows: The respondent to the 3 appeals who was the plaintiff/applicant in the court below filed in the Federal High Court Kano, a writ of summons dated 21st March, 1997. In the writ of summons the plaintiff claimed monetary relief in dollars for a breach of contract by the appellants over a lease agreement made between the parties on 3rd February, 1997. The respondent/plaintiff in the court below also filed a motion ex parte dated 21st March, 1997 and on the said motion on the same day respondent/plaintiff received from the said court an order which restrained the appellant from removing the aircraft, subject of the contract out of Mallam Aminu Kano International Airport Kano. On the 25th March, 1997, the court granted leave to the respondent to issue the writ of summons outside the jurisdiction of the court by substituted service. The appellant’s brief shows that the motion on notice dated 25th March, 1997 was filed four days after the order for interim injunction was made. At the hearing of that motion on notice, and on the application of the appellant, the motion argued on 7th and 9th April, 1997, was heard, the appellant prayed that the order of 21st March, 1997 be struck out upon the appellant’s objection that the subject matter of the suit being a relief for breach of a contract is outside the jurisdiction of the court. Appellant averred in the court below that the said contract was entered into in the United Kingdom to be performed in the Equitorial Guinea, and that all the appellants are resident in the United Kingdom. The appellant prayed the court to strike out the names of the 2nd and 3rd appellants from the suit as they were not parties to the contract which form the subject matter of the suit. In the alternative the appellant sought in the court below an order setting aside or discharging the order of interim injunction which restrained the removal of the aircraft from Aminu Kano International Airport. The learned trial Judge ruled on the 14th of April, 1997 refusing all the appellants’ prayer except one. The order of the court made at the hearing in the circumstance is for the release of the detained aircraft upon payment by the appellants of 100,000 US dollars to the Registrar of the Federal High Court Kano, who would use the same to open an interest bearing account with the Union Bank Kano in trust for the parties and upon the inspection of the aircraft by officials of the Civil Aviation Authority of the United Kingdom, failing which officials of the Civil Aviation Authority of Nigeria were to conduct the inspection. The appellant’s were dissatisfied with the decision of the court and with the said order. On appeal No 1 they filed one ground of appeal with its particulars on page 178 of the record from which the issue submitted for determination arose. It is: “whether having regard to the claim and evidence before the court, the lower court had jurisdiction to entertain the suit.”

It is convenient at this stage before proceeding further to state that at the hearing of this appeal the appellant abandoned appeal number 2 in this appeal and urged the writ to strike out same, the issue proposed for determination by the appellant in appeal number 2 is as follows:-

“Whether an order of interim injunction pending the determination of the motion on notice should have been granted in the absence of the existence of a motion on notice?”

The respondent in their brief filed on 22/12/98 had reversed the order of the numerals in which the appellant set out their appeals and instead of commencing as appellant did, in their brief with appeal number, the respondents commenced their respondents’ brief with a response to appeal number 2 and appeal number one of appellant was by the respondent treated as appeal number 2. Upon the request therefore of the appellant to the court to strike out and appeal number two, it is hereby struck out the response thereto by the respondent in their brief is hereby also struck out.

In the appellant’s brief filed on 16/12/98, on the appeal number one, the issue for determination as above is “having regard to the claim and evidence before the court, the lower court had (No) jurisdiction to entertain the suit”. The appellant advanced the reasons in the brief of argument which includes: (1) The averments that the defendants reside outside the jurisdiction of the court. (2) That the contract was entered into in the United Kingdom. (3) That the contract was breached outside Nigeria. (4) That the contract was to be performed outside Nigeria.” It is because the above arguments 1 – 4 show that the appellants do not agree that the learned trial court is possessed of jurisdiction that I have deemed it appropriate to add the word “NO” above to the issue as formulated by the appellant, this in my view shows the real intendment of the issue at a glance.

The appellant in their brief have averred that the subject matter of the suit before the court was contracted outside Nigeria, and to be performed outside Nigeria, and the defendant being resident outside Nigeria the court cannot be said to be possessed of jurisdiction on the entire suit. It should be struck out. In its brief, the respondent argued that the appellants were deemed to have admitted in law the facts contained in the respondents affidavit, that the learned trial court had considered the facts of the case as contained in the affidavit and decided that it had jurisdiction and the facts referred to by the respondent in its brief on page 14 are:-

(a) That it was agreed that the aircraft shall be delivered to the applicants in Kano on 12th February, 1997 from where it shall depart to Malabo.

(b) That Captain Dayo Olubadewo flew from London on 9/2/97 for Kano to receive the aircraft; and that the aircraft did land in Kano. In this connection the respondent referred to exhibit PO3, attached to the affidavit in support of plaintiff/respondent motion.

A full appraisal of the whole facts should once again be focused upon the grant by the Federal High Court of an order on an ex parte application of the respondent on the aircraft of the appellant at the Mallam Aminu Kano Airport which was detained there at. The order was made upon the condition that a certain sum of money in U.S. dollars should be paid to the custody of the Registrar of the Federal High Court. The immediate response of the appellant who should have been respondent to the motion on notice filed on 25th March, 1997, after the interim order was issued was to raise a preliminary objection to the writ of summons, in which they asked inter alia, that the entire suit be struck out for lack of jurisdiction of the court: or in the alternative vacate the interim order. To further grasp the issue which is now being considered. I here repeat the issue. The appellant in appeal No.1 asked whether:-

“Having regard to the claim and evidence before the court, the lower court had jurisdiction.”

There is a claim before the court, by a writ of summons filed by the respondent. It is here relevant to ask what evidence is before the court. There is no evidence whatsoever before the court on which the court can determine the issue of jurisdiction.It has been resolved that where an objection is made to the jurisdiction of the court the court is still entitled to assume jurisdiction to hear evidence, to enable it decide whether or not it is in fact not possessed of Jurisdiction. See (1) Anisminic Ltd v. Foreign Compensation Commission & Ors. (1969) 1 All ER 208. H.L. (II) Barclean Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976) 1 All NLR P.409 (II)A.-G. Lagos State v. L.J. Dosunmu (1989) 3 NWLR, (Pt.III) 552.

In its preliminary objection, the appellant had without stating so, applied under the provisions of order 27 rule 1 of the Federal High Court Civil Procedure rules; rule (1) which enables the Federal High Court to dismiss a suit, if the allegation made by the plaintiff are admitted. In the preliminary objection made by the appellant, the respondent has clearly not admitted some crucial averments made by the appellant nor has the respondent admitted the appellant’s version of the agreement in its affidavit in support of the motion by which an unspecified nature of the order of court was obtained. It cannot however, be denied that the order to restrain the movement of the aircraft was not a final order in the suit. An example of conflict in the averments made by both parties is the one on which the appellant denied that an oral agreement exists between the parties, which respondent said varied the written terms of the contract. The question must be asked, is such an issue to be resolved by affidavit evidence? To resolve such an issue on affidavit evidence will in my view derogate from the essence of due processes which should give justice and may work hardship on the parties if so resolved. It is settled practice, that a trial court has no jurisdiction to resolve suo motu conflicting averments in affidavits or on conflicting affidavit or prefer one version of deposition to the other, without oral evidence. See Akinbobola v. Registered Trustees of Christ Apostolic Church (1995) 2 NWLR (Part 379) 623 at 634, para. D.

The appellants have argued in their brief correctly that a court of law must consider three indices, as in Madukolu’s case before it can entertain jurisdiction.

The issues are (a) that memberships of the court is properly constituted (b) that the subject matter of the case is within its jurisdiction (c) that the case was initiated by due process of the law. For the court to reach the conclusion on each of the indices above, it must receive evidence from the parties. See Akinbobola v. Fisko (1991) 1 NWLR (Pt. 167) 270 para. D. at 284. It is upon the totality, or cumulation of the evidence received that the court in performance of its judicial function of weighing the facts which enables it to determine whether the court is possessed of jurisdiction or not. It is not done in any other way.Jurisdiction of the court or the lack of it may be founded on either the legal capacity to adjudicate on the issues or on the geographical area or venue which is whether the legal jurisdiction of the court can be exercised having regard to the place of performance of the contract or where the defendant resides. See Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 560-561. (II) Ejike v. Ifeadi (1990) 4 NWLR (Pt.142) 89 CA. At the stage where the court in these proceedings issued an order to restrain the movement or removal of the aircraft, the court could only have acted, or did act only on a temporary basis. I say temporary because it is necessary to avoid giving a description to the kind of order made by the court. In issuing the order the court did not limit the period of the order; as for example pending the hearing of the motion on notice, or determination of the suit. It is clear in any case that the application before the court ex parte should have resulted only in an interim order. It is important that the tenure of an interlocutory order should be specified by the presiding Judge at the time the order is issued. The order being an interlocutory one made by the court is not the proper occasion when evidence can be tendered in order to determine jurisdiction. The answer to appeal No 1 of the appellant is, no evidence is before the court upon which the court may determine its jurisdiction or lack of it. In the result, the appeal fails. It is dismissed.

In appeal No.3, in the same brief of argument of the appellants. The appellants raised the issue to be determined as follows:-

“Whether having regard to the provisions of section 33 of the Constitution of the Federal Republic of Nigeria 1979 as amended, and the decision of the Supreme Court of Nigeria in Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419, the learned trial Judge was right in declining to set aside the order made on 30/4/97.”

The order made by the lower court on 30/4/97 is on page 142, of the record, and it is as follows:-

“That the sum of USD 100,000 deposited in court by the defendants be converted to its Naira equivalent, and same shall be used by the Registrar of this Honourable Court to open an interest yielding account with Union Bank of Nigeria Plc Bank Road, Kano in trust for the eventual winner of this case.”

The order of court was made pursuant to a motion ex parte moved by the respondent to this appeal/applicant in the court below. In the quoted portions of the affidavit in support of the application See page 141 of the record, it is stated thus:-

“It has now been shown in the affidavit in support of the motion that instead of complying with the above order before taking the said Aircraft away the defendant allegedly transferred the said sum of money to the head office of Union Bank Nigeria Plc in Lagos. It has also averred that the defendants neither deposited cash with the Registrar of this Court nor produced any bank draft, but that the branch manager of Union Bank Plc Kano, confirmed that the defendant transferred the said sum of US 100,000 dollars to its head office in Lagos. It has also been shown that the Union Bank being a Commercial bank has no power under the present financial regulation in the country to open a domiciliary account for anybody etc.”

The appellants averred that they filed a motion on notice dated 2nd June, 1997 in which they prayed that the order of court made on 30 April, 1997, be set aside and the motion was dismissed.

The dissatisfaction of the appellant with subsequent order of the court which informed the appeal No.3, on the issue for determination quoted above. It is the argument of the appellant that the issue of the conversion of the sum in dollars deposited with the Bank in connection with the order of court to so deposit, which order was made on an application ex parte, breaches the constitutional right of the appellants. The appellants aver that the application made by the respondent is contentious and that in the circumstance the order made by the court should have been interim not final. It is submitted for the appellants that the court made a final order when it did not make the order subject or limited to a stated date or limited to a specified event. Having not so limited the tenure of the order that the court had finally disposed of the issue without taking evidence. The effect of this as submitted by the appellants is a denial to the appellants of the right of fair hearing, which rendered the order a nullity and should be set aside.

The respondent submits in his brief that the issue formulated by the appellants does not arise from the only ground of appeal filed. Consequently, the respondent submitted that there is no issue formulated by the appellants, and the submission thereon goes to issue. In the event of the failure of that objection the respondent submitted that the application was made under Order 20 rule 4 of the Civil Procedure Rule 1976, as amended, and that being so, the order may be discharged, varied or set aside on the application of a dissatisfied party. Respondent submitted that the order of court made on 30/4/97 is neither an interim, nor an interlocutory injunction, and that it was an order made pursuant to the inherent judicial powers of the court, and that the appellants had failed to show to the court below the way he was prejudiced by the order. Respondent said in any case the order did not occasion any injustice to the appellant and should not be set aside. In considering the objection made by the respondent to the issue for determination not arising from the ground of appeal. I wish to say that the respondent was right in its caution and has not relied on the objection alone as an answer to the appellants issue for determination.

I have re-read the ground of appeal from which respondent submitted that the issue for determination does not arise. The ground of appeal filed speaks of error of law of the trial court, in refusing to set aside an order made by the court on 30/4/97. The issues formulated asks, whether Section 33 of the 1979 Constitution was not breached when the court refused to set aside its order made on 30/4/97. Rephrased in the above manner, surely it will be clear even to the respondent that the issue raised formulated by the appellant in appeal No.3 arose directly from that ground of appeal filed. While it is the settled position of the rules of practice in court or appellate jurisdiction that the issue formulated for determination of the appeal should arise from the ground of appeal filed, see Okelola v. Boyle (1998) 1 SCNJ 63. (1998) 2 NWLR (Pt.539) 533 per Ogundare J.S.C. the issue so formulated may not necessarily state the particular error allegedly breached in the ground of appeal filed, except where the particulars are supplied, and the issue formulated for determination should be cohesive, clear and stand out from a suffuse of words used in the ground of appeal, with its particulars.

I find no substance in the objection. The issue is therefore overruled.

Was the learned trial Judge right in law in refusing to set aside the order made on 30/4/97, by him upon an ex parte application by the respondent?

My understanding of the above issue formulated by the appellants in appeal No.3 is whether a final order made by the learned trial Judge upon an ex parte application in a contentious matter of that nature should not have been set aside ex debito justitiae, upon an application by the person affected by the order. Put in another way, since the learned trial court was aware that the person who could be or is affected by the order made on 30/4/97 has not been heard before the order was made, is it not appropriate to set aside the order made upon the objection of the person affected? The alternative side of the appellants prayer is this, since the order made on 30/4/97 was not made subject to the time when the person affected by the order is heard, is it not right to set aside the order, now that the person affected has objected to it. The basis of the appellant’s prayer is the provisions of our constitution, at the time, the 1979 Constitution which allows fair hearing of all parties in a matter which affects them. It is not in my view a matter in which the complainant must show that he is prejudiced before it can be seen that a wrong has been done against him. The law, Section 33, presupposes a wrong has been done to him if he is not heard in a matter which affects his right or property. It is profitable in these present case to consider the state of the parties and the facts before the order of 30/4/97 was made which directed the conversion of $100,000. (One Hundred Thousand Dollars) to Naira equivalent.

It is this that the hearing of the motion on notice, in which the respondent sought an interlocutory order of court to restrain the removal of the aircraft of the appellants from the Mallam Aminu Kano International Airport, the appellant who had also a motion in court to strike out the entire suit, however conceded at the hearing of the 1st motion, to the payment by the appellants of the sum of $100,000 dollars deposit; and the court made an order that the sum of $100,000 dollars be deposited with the Registrar of court and on the perfection of other stated condition before the Aircraft can be removed from the Mallm Aminu Kano International Airport. The printed record shows that some conditions were carried out, the part of the perfected conditions which concerns this appeal is the deposit of the sum of $100,000 dollars. Whether the court below was exercising a judicial, inherent judicial power, or granting the prayers contained in applicants motion, is it not right that the person who deposited the money be heard before the order for conversion was made?

It is the law that a party affected should be heard before an order is made, affecting his rights. See Ita v. Nyong (1994) 1 NWLR (Pt.318) 56 CA where it was considered and ruled that a court should not on an interlocutory application finally determine the rights of the parties. The case cited above was on a motion on notice the instant case is worse and reprehensible when a final order was made on a motion ex parte. However much the respondent in this application defends the order made on 30/4/97 for the conversion of the sum of $100,000 dollars to its Naira equivalent without hearing from the appellant who deposited the money, he cannot say the constitutional provision of fair hearing was observed. The court had an option to demand that the appellant be put on notice before the application was considered; and the order made even if the lower court was displeased that its earlier order was not carried out to the letter by the appellant. The order of the lower court made on 30/4/97 would appear to be motivated by factors not relevant to the application before the court. The same factors dictated the order of refusal to set aside the final order which was made upon an ex parte application. In my view, it breaches the provisions of section 33 of the Constitution; it therefore denied the appellants a right to be heard in a matter which affects their right to their property.

For the said sum of $100,000 dollars remain the property of the appellants until final judgment in the suit is delivered. The order of the Federal High Court Kano made on 30 April, 1997 is unjust, it is hereby set aside. It is hereby directed that the case be continued before a Judge of the Federal High Court other than the Honourable Justice Abdullahi Mustapha. The appeal No.3 succeeds. There will be no order as to cost.

Other Citations: (2000)LCN/0656(CA)