Sudan Airways Company Limited V. Surajo Mohammed Abdullahi (1997)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A.

By a writ of summons taken from High Court No.8 of Kano State, holden at Kano, the respondent (as plaintiff) claimed from the appellant (as defendant) the sum of N300,000.00 (Three hundred thousand naira only) being cost of Kola nut consigned to the appellant for delivery at Khartoum. This consignment was never delivered at Khartoum to the respondent as agreed upon by the parties.

The genesis of the whole case as is clear from the printed record placed before this court is that the appellant is an Airline Company engaged in the freight of goods and passengers to several countries of the world including Nigeria, having its Regional Office at Post Office Road, Kano. The respondent is a Business man resident in Kano and who carries out Business both locally and internationally. On 2/3/94, the respondent purchased an Air Ticket for Kano to Khartoum, Khartoum to Jedda, Jedda to Khartoum and finally Khartoum to Kano. The Air Ticket cost him N18, 360.00. He had some luggage, mainly Kolanuts which he was to board along with and for which he had to pay to the appellant the sum of N7, 560.00 excess luggage charges. He was told that he would collect his luggage on arrival at Khartoum Airport. On arrival at Khartoum Airport on 2/3/94, respondent could not trace his luggage. He laid his complaint in this respect to the appellant’s Office in Khartoum. The Office issued him with property irregularity Report (P.I.R.) on same date. Thereafter, frantic efforts to trace the respondent’s luggage proved abortive which led to the respondent’s spending 6 days in Danah Hotel in Khartoum costing him N10, 000.00. On his return to Nigeria on 11/3/94, respondent made a report to the appellant’s regional office in Kano. Still, the luggage were no where to be traced. Hence, the commencement of the action.

A memorandum of appearance was filed by the appellant but did not file a statement of defence. On the 5th of July, 1994 the respondent testified in his own behalf. Thereafter, Judgment in the sum of N201, 861.00 (Two hundred and one thousand, eight hundred and sixty one naira only) was entered in favour of the respondent. It is against this judgment that the appellant appealed to this court. Three Grounds of Appeal were originally set out in the Notice of appeal. By leave of this court granted on 23/04/96, the appellant filed an Amended Notice of Appeal which now contained six grounds.

Before commencement of hearing the appeal, parties filed and exchanged briefs of argument. Hearing commenced on 08/10/97. Learned counsel for the appellant adopted and relied on his brief of argument. Learned counsel for the respondent too, adopted and relied on his brief. The appellant formulated the following issues for determination by this court:

“(a) Whether as at 1994 which was when the Learned Trial Judge entertained the respondent’s claim and gave Judgment in favour of the respondent, he had the jurisdiction to determine issues arising from a contract of carriage of goods and passengers by air.

(b) Whether it was right for the Learned Trial Court to award special damages for the respondent when the same was neither specially pleaded nor specifically proved.

(c) Whether the Learned Trial Court was right in applying the ordinary principles of English Law of contract when the parties to the transaction had mutually elected which law to govern their transaction.

(d) Whether the Lower Court was right in refusing to set aside the Judgment obtained by the respondent in the appellant’s absence when an application disclosing the reasons for the appellant’s absence and praying the court to set aside the Judgment was brought and duly argued before the Lower Court.”

The respondent on his part adopted all the issues formulated by the appellant.

In his argument on the first issue learned counsel for the appellant made copious submission particularly quoting and relying on the provisions of sections 7(1) (L); 7(2), 7(5) of Decree 60 of 1991 otherwise known as Federal High Court (Amendment) Decree, 1991. He also cited and relied on section 230(1) (K) of Decree 107, otherwise known as “Constitution (Suspension and Modification) Decree 1993.” The main argument of learned counsel for the appellant in all the above provisions is that although section 236 of the Constitution of the Federation 1979 conferred unlimited jurisdiction upon the High Court of a State, the section and indeed the Constitution have undergone some modifications by Decrees such as Decrees No. 60 of 1991 and 107 of 1993. The provisions cited in these two Decrees, he argued further, have the cumulative effect of limiting the hitherto unlimited jurisdiction enjoyed by the State High Court Section 7(5) of Decree No. 60 in particular expressly limited the jurisdiction of the State High Court in respect of all the matters mentioned under section 7(1) thereof which include any civil cause or matter arising from carriage of goods and passengers by air. The court now conferred with jurisdiction on such matters is the Federal High Court. Learned counsel cited a plethora of cases in support of his submission which include among others Adeyemi v. Opeyori (1976) 9-10 SC 31; Babale v. Abdulkadir (1993) 3 NWLR (Pt. 281) 253; A.G. of the Federation v. Sode (1990) 1 NWLR (Pt.128) 500; State v. Onagoruwa (1992) 2 NWLR (Pt 221) 33. Learned counsel for the appellant submitted finally that the Lower Court lacked Jurisdiction to entertain the respondent’s claim before it and its Judgment and other proceedings on same are a nullity and should be set aside. He urged this court to direct the respondent to pay back to the appellant the 1/3 of the Judgment sum paid by the appellant to the respondent as ordered by the lower court or, in the alternative an order for a rehearing of the case on its merit.

Learned counsel for the respondent made frantic effort to debunk the submission made by the appellant. In his view, the provisions of Decree 60 of 1991; 107 of 1993 and the 1979 Constitution were more in favour of the respondent. The resume of his argument is that as at the time the lower court delivered its Judgment it had jurisdiction to try the subject matter of the action.

However, in another breath, learned counsel for the respondent conceded, after having quoted extensively from the provisions of the above enactments that: “The afore quoted provisions of the law expressly ousts (sic) the jurisdiction of the State High Courts from entertaining matters relating to carriage of goods and passengers by air” (p.3 Para. 3.3 of respondent’s brief). Learned counsel for the respondent made further submission, however, that the provisions of Decree 60 of 1991 were further amended by section 230(1) (K) of Decree 107 of 1993 by expressly omitting the phrase “Carriage of passengers and Goods by Air,” and that in his view, it is a settled principle of law that “express mention of one thing is an exclusion of all others”. He buttressed this submission by citing the Supreme Court case of Udo & Ors v. Orthopaedic Hospitals Management Board and Anor. (1993) 7 NWLR (Pt. 304) 139; (1993) 7 SCNJ 436 at 443. He also called in aid the provision of section 6(1) of Decree 107 of 1993. Learned counsel concluded his argument that the Federal High Courts do no more have exclusive jurisdiction over matters relating to carriage of passengers and goods by air as section 7(1) (L) of Decree 60 of 1991 has been modified by section 230 (1) (K) of Decree 107 of 1993, not to include any more matters relating to carriage of passengers and goods by air. Thus, the lower court had jurisdiction by virtue of section 236 of the 1979 Constitution of the Federation. He accordingly urged this court to dismiss the appeal on this issue.

Now, having carefully considered the nature of the action on appeal and the general conceptualization of the whole case by both parties, I find it necessary at this stage of the appeal to state that by looking at the prevailing law, it will not serve any purpose to go into the merit of the appeal. This is because issue No.1 is most fundamental and must be resolved at once. It is this issue that determines whether the remaining issues formulated by the parties can be considered or not.

It is agreed within the legal circle that jurisdiction is the spinal cord of a court of law. Any decision taken by a court without jurisdiction is no decision at all and is subject to being nullified on appeal see: Madukolu v. Nkemdilim (1962) 2 SCNLR 341.

The practice in the recent past was that the High Court of a State by virtue of general powers conferred upon it by section 236 of the Constitution of the Federation 1979, enjoyed exclusive monopoly of jurisdiction on almost all first instance cases. The recent amendments introduced by some Decrees, such as No. 60 of 1991, No. 107 of 1993, have brought a lot of weight to bear on the state High Court’s jurisdiction. For instance, the Federal High Court (Amendment) Decree, 1991 (Decree No. 60 of 1991) which came into force on the 26th day of August, 1993, States in section 7 as follows:-

“7(1) The court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters connected with or pertaining to-

(L) aviation, safety of air craft and carriage of passengers and goods by air and meteorology”

Decree No. 107 of 1993, which came into effect on the 17th day of November, 1993, amended section 230(1) (K) of the 1979 constitution. The section 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)…

(k) aviation and safety of aircraft.”

(Italics for emphasis)

Thus, the provisions of sections 7(1) (L) of Decree 60 of 1991 and 230(1) (k) of the 1979 Constitution of the Federation as amended, clear as they are, leave no one in doubt that the only court having exclusive jurisdiction on aviation matters including carriage of goods and passengers is the Federal High Court. See Ali v. CBN (1997) 4 NWLR (Pt. 498) 192; Egypt Air v. Abdullahi (1997) 1 NWLR (Pt.528) 179, Appeal No. CA/K/273/95 of and May, 1997 (Court of Appeal, Kaduna Division). I therefore find it difficult to reason with learned counsel for the respondent’s submission that section 230 1 (K) of Decree 107 and the provisions of section 7 of Decree 60 of 1991 have ousted the jurisdiction of the Federal High Court on matters relating to carriage of passengers and goods by air. In fact the reverse is the case. I am not in agreement also with the learned counsel’s submission that the rule of interpretation adopted by the Supreme Court in the case of Udoh and Ors. v. Orthopaedic Hospitals Management Board and anor. (1993) 7 NWLR (Pt. 304) 139 (1993) 7 SCNJ 436 at 443, is the same rule that will govern the appeal on hand. The two cases are quite distinguishable. In my view the basic principle of interpretation of statutes such as the ones referred to in this appeal by learned counsel for the respective parties is that the golden or literal rule of interpretation whereby words used in the statutes are given their ordinary and plain meaning, is resorted to by the courts.

Awolowo v. Shagari (1979) 6-9 S.C. 51 at 90-92; Aqua Ltd v. Ondo State Sports Council (1988)4 NWLR (Pt. 91) 622 at 641-642; Fasokin v. Fasakin (1994) 4 NWLR (Pt 340) 597 at 617. I therefore hold that section 230 of the 1979 Constitution of the Federation as amended by Decree No. 107 of 1993 in its ordinary meaning does not deprive the Federal High Court from exercising jurisdiction in matters specified therein. Further, there is nothing in section 230 of the 1979 Constitution (as amended) which suggests that both the Federal High Court and the High Court of a State have concurrent jurisdiction to entertain matters specified in that section. If anything, the amendment to section 230 of the 1979 Constitution (as amended) which suggests that both the Federal High Court and the High Court of a State have concurrent jurisdiction to entertain matters specified in that section. If anything, the amendment to section 230 of the 1979 Constitution brought by Decree 107, has completely divested a State High Court of its exclusive jurisdiction it hitherto enjoyed. Section 7(1) (L) quoted supra is very clear on this point. The two sections enhance the jurisdiction of the Federal High Court.

In conclusion, since the claim of the respondent at the lower court related to carriage of goods and passengers by air, the lower court certainly had no jurisdiction as at the time it entertained the matter. The best course opened to the lower court was to transfer the matter to the Federal High Court, Kano. See section 7(6) (b) of Decree 60 of 1991. But as the lower court did not comply with this provision, I have no alternative to declare the whole proceeding including the Judgment of the lower court a nullity. It is trite law that any step taken on a matter by a court that lacks jurisdiction thereon is a complete nullity. See: Kalio v. Kalio (1975) 2 S.C. 15; Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350 at 364. Accordingly, I declare the Judgment delivered by the lower court on the 6th day of July, 1994 and all the proceedings relating to the suit before it, a nullity and are hereby set aside. This appeal therefore succeeds and is hereby allowed on this issue alone. Having regard to the above conclusion, I do not consider it necessary to delve into the remaining issues which touch on the merit of the case. Accordingly the case is hereby transferred to the Federal High Court, Kano for a fresh hearing. Parties to bear own costs.

Other Citations: (1997)LCN/0304(CA)