Egypt Air V. Alhaji Umaru Ta’ambu Abdullahi (1997)
LawGlobal-Hub Lead Judgment Report
MOHAMMED, J.C.A.
This is an appeal against the judgment of the Kano State High Court of Justice sitting at Kano and delivered by Patricia Mahmud J. on 4/5/95. At the trial court the respondent who was the plaintiff took out a writ of summons dated 25/10/90 and claimed the total sum of N378,024.00 from the appellant which was the defendant being the total value of textiles materials and threads entrusted by the plaintiff to the defendant for freight by air from Cairo in Egypt to Kano in Nigeria and general damages.
The parties exchanged pleadings before hearing commenced before Mahmud J. The plaintiff was the only witness who testified in support of his claims while the defendant called 3 witnesses who testified in support of its defence. At the end of the trial, the learned trial Judge found for the plaintiff and granted part of his claims as follows:-
“I find from this case that the plaintiff has proved his case on a balance of probabilities against the defendant, the defence of illegality and frustrations having failed. These defences were not raised in respect of the 900 dozens of thread. By implication the defendant has admitted this head of claim and was only raising the defence of frustration and illegality on the textiles materials. I also find that the defendant has not discharged the burden of proving that the contract was either illegal or frustrated. I find also that the plaintiff failed to lead evidence upon which I can assess general damages in his favour. The evidence as to the cost of the thread and textile materials as well as the equivalent in Naira given by the plaintiff was unchallenged and uncontradicted. I am therefore left with no option but to accept and act on them.. Accordingly I hereby enter judgment in favour of the plaintiff against the defendant in the sum of N252,016.00.”
The defendant now appellant which was not happy with this judgment has appealed against it to this court. The Notice of Appeal contains the following 3 grounds of appeal.
“1. The learned trial Judge erred in law in refusing to apply the provisions of S.6 of Schedule 4 to the Customs, Excise Tariff etc. (Consolidation) Act Cap. 88 Laws of the Federation of Nigeria 1990 in her judgment to thereby hold that the contract could not be performed in Nigeria.
Particulars:
(a) The plaintiff is a Nigerian and the goods to be carried under the contract between the plaintiff and the defendant was to be delivered in Nigeria.
(b) The contract would therefore be subject to all relevant Nigerian Laws including the aforementioned Customs, Excise Tariffs etc (Consolidation) Act which prohibits the importation of the goods the subject matter of the contract.
- The learned trial Judge misdirected herself in awarding N150,000.00 cost of the textile materials as claimed by the plaintiff when the textile materials were by the evidence adduced prohibited from being exported from Egypt under Egyptian Law and the learned trial Judge found in favour of this state of the Egyptian Law in respect of the textile materials as prohibited for exportation from Egypt.
- The lower court lacked jurisdiction to hear and determine the suit since the coming into operation of the Constitution (Suspension and Modification Decree) No. 107 of 1993.
Particulars
(a) The subject matter of the suit before the lower court in the carriage by aircraft which is aviation.
(b) Jurisdiction of State High Court in aviation matters has been ousted by S. 203 of the aforementioned Decree 107 of 1993 which came into operation on 17th November, 1993.
(c) The judgment in this case was given on 4th May, 1995 and was therefore given without jurisdiction and is null and void and of no effect whatsoever.”
In accordance with the rules of this court the appellant filed its brief of argument and formulated the following 2 issues from the 3 grounds of appeal.
“1. Whether the trial court, a State High Court had jurisdiction to entertain and give judgment in the suit at the time of delivering judgment on 4th May, 1995 on the suit whose subject matter is air freight (ground 3 in the Notice of Appeal).
- Whether the plaintiff/respondent’s claim in the lower court was not illegal and thereby unenforceable by Section 6 of Customs, Excise, Tariff etc (Consolidation) Act Cap. 88 Laws of the Federation of Nigeria, 1990 and third Schedule thereof (ground 1 in the Notice of Appeal).”
The respondent also filed a brief of argument and formulated the following 2 issues:-
“1. Whether the trial court was deprived of jurisdiction to conclude hearing of the suit by virtue of Section 1(1) of the Constitution (Suspension and Modification) Decree No. 107 of 1993 when the suit was filed before the commencement date of the Decree No. 107.
- Whether the contract between the appellant and the respondent was ex-facie illegal so as to entitle the appellant to raise the issue of illegality without pleading or/and proving same by evidence.”
As the appellant has specifically stated in its brief of argument that ground 3 of the grounds of appeal on which no issue was formulated had been abandoned, the abandoned ground is hereby struck out.
It is observed that the 2 issues identified in the appellant’s brief of argument for the determination of this appeal are the same as those identified in the respondents’ brief of argument. The 2 issues are therefore the only issues for determination. In compliance with the orders of this court, the parties have also filed their respective supplementary briefs containing additional submissions on the application of or relevance of the Federal High Court (Amendment) Decree No. 60 of 1991 to the appeal.
It is trite that the issue of jurisdiction is fundamental to the question of competence of the adjudicating court. See Kalio v. Daniel-Kalio (1975) 2 S.C. 15. Hence it is crucial to any court adjudicating first to determine the issue. See Barclays Bank v. Central Bank (1976) 6 S.C. 175 and Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 at 364. It is therefore necessary in the present appeal where the issue of jurisdiction of the lower court is one of the 2 issues for determination to first consider the competence of the Kano State High Court raised in the first issue for determination which I have earlier quoted in this judgment.
Learned counsel to the appellant had submitted in support of this issue that by virtue of Section 230(1)(k) of the 1979 Constitution of Nigeria as amended by S.1(3) of the Constitution (Suspension and Modification) Decree No. 107 of 1993, jurisdiction in respect of Aviation has been exclusively vested in the Federal High Court. That since the subject matter of the respondent’s claim at the lower court is clearly covered under “aviation and safety of airfreight”, the lower court had no jurisdiction to adjudicate on the matter which by virtue of the amendment is now the exclusive jurisdiction of the Federal High Court. Relying on the provisions of S.7 (5) & (6) of the Federal High Court Act Cap. 134 of the Laws of the Federation of Nigeria 1990 as amended by the Federal High Court (Amendment) Decree No. 60 of 1991 which came into force on 26th August, 1993, the appellants’ counsel contended that with effect from 26/8/93, the case now on appeal being a pending matter in respect of which the lower court had ceased to have jurisdiction to entertain, the matter should have been transferred to the Federal High Court for hearing. That since the lower court had without jurisdiction proceeded with the hearing and delivered judgment on 4/5/95, its judgment is a clear nullity, concluded the learned counsel for the appellant who urged this court to allow the appeal and transfer the case to the Federal High Court Kano for hearing afresh.
However, it was the stand of the respondent that although the Federal High Court (Amendment) Decree No. 60 of 1991 which came into force on 26/8/93 had removed the subject matter of the case at the lower court from the jurisdiction of the State High Court and vested the same exclusively on the Federal High Court, that law has now been superceded by the provisions of S. 230 of the 1979 Constitution as amended by Decree No. 107 of 1993 which came into force on 17/11/93 and which also contained the same amendments increasing the jurisdiction of the Federal High Court. Learned counsel to the respondent therefore argued that since the amendment to S.230 of the 1979 Constitution did not make any provisions for pending cases, coupled with the restoration with full effects of the unlimited jurisdiction of the State High Courts under S. 236 of the 1979 Constitution by Decree No. 108 of 1993, the jurisdiction of the lower court on the subject matter of the case had been restored and as such its decision was not a nullity.
It is trite that a court can only be competent if among other things, all the conditions to its having jurisdiction are fulfilled. The locus classicus of the competence of the court to adjudicate, is the Supreme Court decision of Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR (Pt.4) 587. In that case it was stated that a court is said to be competent when:-
(a) it is properly constituted as regards number and qualifications of the members of the Bench and no member is disqualified for one reason or another; and
(b) the subject matter of the case is within its jurisdiction and there is no feature of the case which prevents the court from exercising its jurisdiction; and
(c) the case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal for the proceedings are a nullity however well conducted and decided. These principles have been restated in many subsequent decisions of the Supreme Court, notable among which are Ogunsanya v. Dada (1990) 6 NWLR (Pt.156) 347; Osafile v. Odi (No.1) (1990) 3 NWLR (Pt. 137) 130; Attorney-General of the Federation v. Sode (1990) 1 NWLR (Pt.128) 500 and Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 at 365.
Indeed one of the essential elements for the exercise by the court of its jurisdiction is that the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. The facts of this case are largely not at all in dispute between the parties. The respondent’s action at the lower court as can be gathered from the writ of summons and the statement of claim was instituted in November 1990 at the time when both the lower court and Federal High Court have concurrent jurisdiction on the subject. Hearing in the case however continued before the lower court until 4th May, 1995 when judgment in the case in favour of the respondent was delivered. Meanwhile by the Federal High Court (Amendment) Decree No. 60 of 1991 which did not come into operation until 26th August, 1993, S. 7 of the Federal High Court Act was amended to vest exclusive jurisdiction in the Federal High Court in all matters relating to-
“Aviation, safety of aircraft and carriage of passengers and goods by air and meteorology.”
Later in the same year 1993, S. 230 of the 1979 Constitution of the Federal Republic of Nigeria which deals with the jurisdiction of the Federal High Court was also amended by the Constitution (Suspension and Modification) Decree No. 107 of 1993 vesting exclusive jurisdiction in the Federal High Court in all actions and matters relating to:
“aviation and safety of aircraft”
The action filed by the respondent at the lower court being one for claims for refund of the cost of goods lost in transit by an air carrier and damages, the question for determination now is whether in the circumstances of this case the judgment of the lower court delivered on 4/5/95 is valid.
In dealing with this issue, I find it necessary to set out the relevant provisions of S.7(1)(i) of the Federal High Court Act as amended by the Federal High Court (Amendment) Decree No. 60 of 1991 which came into force on 26/8/93. It reads:-
“7(i) The court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters connected with or pertaining to – x xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(1) aviation, safety of aircraft and carriage of passengers and goods by air and meteorology.” (Italics supplied)
S. 230(1)(k) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Decree No. 107 of 1993 which came into force on 17/11/93 which also amended the provision on the jurisdiction of the Federal High Court reads: –
“230(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from –
(a) x x x x x x x x x x x x x x x x x x x
(k) aviation and safety of aircraft.” (italics for emphasis)
The basic principle of interpretation of statute is the golden or literal rule which requires words used in statutes be given their plain and ordinary meaning. See Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622 and Fasakin v. Fasakin (1994) 4 NWLR (Pt.340) 597 at 617. It is quite clear from the provisions of S.230(1)(k) of the 1979 Constitution as amended by Decree 107 of 1993 and S.7(1)(1) of the Federal High Court Act as amended by Decree No. 60 of 1991 which came into force on 26/8/93, that jurisdiction in respect of actions and matters on aviation and safety of aircraft and carriage of passengers and goods by air and meteorology, is vested exclusively in the Federal High Court to the exclusion of any other court irrespective of whatever is contained in the 1979 Constitution as amended. In other words the restoration of the provision of S.236(1) of the 1979 Constitution which gave the State High Courts unlimited jurisdiction by Decree 108 of 1993 relied upon by the learned counsel to the respondent, has no effect whatsoever on the provisions of S.7(1)(i) of the Federal High Court Act as amended and S.230(1)(k) of the 1979 Constitution as amended on the enhanced jurisdiction of the Federal High Court brought into force by those enactments. These amendments were clearly aimed at not only increasing the scope of the jurisdiction of the Federal High Court in respect of the subject matters specified therein, but also at removing the hitherto existing concurrent jurisdiction of the State High Courts in respect of the affected subjects matter or actions. The fact that the suit was filed in 1990 when the lower court had concurrent jurisdiction with the Federal High Court on the subject of the claim is totally irrelevant as the hearing was not concluded before the amendments came into force in 1993. The correct interpretation of the new provisions of S.230(1)(k) of the 1979 Constitution as amended by Decree 107 of 1993 and S.7(1)(1) of the Federal High Court Act as amended by Decree No. 60 of 1991 which came into force on 26/8/93, is that with effect from 26/8/93 in this country, the State High Courts such as the lower court, had ceased to have jurisdiction in respect of all actions and matters relating to aviation, safety of aircraft and carriage of passengers and goods by air and meteorology. The provisions of the two legislations are not inconsistent as argued by the learned counsel to the respondent but complementary. This is because the jurisdiction conferred on the Federal High Court by S. 7 of the Federal High Court Act is only in addition to its jurisdiction already conferred by S.230 of the 1979 Constitution.
In the present case, there is no doubt at all that since the claim of the respondent at the lower court relates to carriage of passengers and goods by air, the lower court with effect from 26/8/93, had ceased to have jurisdiction to entertain it However since the case was one of the pending cases or matters before the State High Court as at 26/8/93, what should have happened to the case depends on the saving provisions contained in S. 7 of the Federal High Court Act as amended. Sub-sections (5) & (6) of S.7 of the Federal High Court Act as amended by Decree No. 60 of 1991 with effect from 26/8/93 which are relevant in this respect are as follows:-
“7(1) x x x x x x x x x x x x x x x x x x x xxx x x x x x x x x x x x x x x x x x x x x x x x x
(5) Notwithstanding anything to the contrary contained in any other enactment or rule of law including the Constitution of the Federal Republic of Nigeria, any power conferred on a State High Court or any other court of similar jurisdiction to hear and determine any civil matter or proceedings shall not extend to any matter in respect of which jurisdiction is conferred on the court under the provisions of this section.
(6) Any decision made after the commencement of this section by any court of law in any purported exercise of any power under the Constitution of the Federal Republic of Nigeria or of any Federal or State law shall, as from the date of making of the decision be null and void if it .
(a) has declared the decision invalid or the court incompetent to exercise exclusive jurisdiction in respect of any of the matters specified under subsection (1) or (2) of section 7 of this Act before it was substituted by this section; or has conferred or purported to confer on any other court, apart from the court, concurrent jurisdiction in respect of the matters specified under section 7 of this Act before it was substituted by this section;
Provided that any decision taken by any court other than the Court as a result of the power of the concurrent jurisdiction so conferred shall be valid, but all other cases pending in the said other courts, other than Appeal Court, shall, at the commencement of this section, abate and the Judge before whom it is pending shall transfer it to the Registrar of the Court to be heard as a new suit.” It is quite plain from the provisions of S.7(5) quoted above that the intention of the amendment was to divest the State High Courts completely of their concurrent jurisdictions with the Federal Court in respect of the matters specified by the Decree. The above quoted provision of sub-section (6) of section 7 of the Federal High Court Act as amended is also quite clear. Since by 26/8/93 when the amendment came into force, the lower court was yet to conclude hearing let alone deliver judgment in the matter, the respondent’s action not being an appeal pending in the Court of Appeal had abated. By the same provision, the action which is the subject of this appeal ought to have been transferred by the learned trial Judge to the Federal High Court, Kano for hearing. Thus, by the action of the lower court in continuing to hear the case and deliver judgment on 4/5/95 when the court had since 26/8/93 ceased to have jurisdiction in the matter, the judgment is clearly a nullity and I so declare. This appeal therefore succeeds on this first issue alone and having regard to the conclusion I have reached in declaring the proceedings and judgment of the lower court a nullity, I do not regard it necessary to delve into the second issue which touches on the merit of the case.
For the foregoing reasons this appeal succeeds and it is hereby allowed. The judgment of the lower court of 25/8/93 to 4/5/95 in favour of the respondent together with the proceedings of the lower court from 25/8/95 having been conducted in the absence of jurisdiction are hereby declared a nullity. The respondent’s case which was then pending at the lower court as at 25/8/93 is hereby transferred to the Federal High Court, Kano which is the court now vested with jurisdiction to hear the case to be heard as a new suit.
I am not making any order as to costs.
Other Citations: (1997)LCN/0339(CA)
