The Registered Trustees Of The Airline Operators Of Nigeriavs Nigerian Airspace Management Agency (2014)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, JSC

By an originating summons dated 11th January, 2002, Airline Operators of Nigeria commenced an action against the Respondent herein and three others.

It set out two questions for determination by the trial court as follows:- “i. Whether having regard to the provisions to Section 7 (i) (r) and or any other section of the Nigerian Airspace Management Agency (Establishment etc) Decree No. 48 of 1999 which defines the functions of the 1st Defendant to include “charge for services provided by the Agency” and the payment of 5% (five percent) Ticket Sales Charge (JSC) by the Plaintiffs (sic) to the Defendants, the Plaintiffs are not in compliance with the law to entitle the 1st Defendant to impose a “So-Called” Domestic En-Route Charges, ii. whether having regard to the said Section 7 (i) (r) and or any other section of Decree No. 48 of 1999, the Defendants have and or can exercise any powers to the detriment of the Plaintiffs to arbitrarily vary and or substitute the charges payable by the Plaintiff” The Plaintiff then sought the following reliefs from the trial Federal High Court: (a) A declaration that the payment of 5% (five percent), Ticket Sales Charge (TSC) by the Plaintiffs to the Defendants is in compliance with Section 7 (i) (r) or any other section(s) of Decree No. 48 of 1999 for services provided for by the Defendants and precludes the 1st Defendant from the imposition of a so-call (sic) domestic en-route charges. (b) A declaration that the defendants have no power either under Section 7 (i) (r) and or any other section(s), of Decree No. 48 of 1999, to the detriment of the Plaintiffs to arbitrarily vary and or substitute the charges payable and being paid by the Plaintiffs; (c) An order of perpetual injunction restraining the Defendants either by themselves their agents, servants, representatives, privies and or whosoever acting for and or on their behalf from imposing any further and or other charges except as provided by the law and or has being complied by the Plaintiffs.” The Originating summons was supported by an Affidavit.

The Respondent herein filed a counter affidavit to the originating summons. The 3 other Respondents, apart from the Respondent herein, were struck out for various reasons in the course of the trial and appeal. The Appellant and the Respondent thereafter adopted their respective final written addresses and the matter was adjourned for judgment.

In a judgment delivered on the 19th day of June, 2003, the trial court, held that the Plaintiffs action succeeded and that the Respondent has no statutory power to levy the domestic en-route charges. The Court refused to grant the declaratory reliefs but went ahead to grant the sole injunctive relief. Before the judgment of the court was delivered, the Plaintiff by motion on notice dated 4th of April, 2003 sought an order of the trial court granting leave to amend the originating summons “to properly reflect the name of the Plaintiff to wit: “The Incorporated Trustees of Airline Operators of Nigeria” in place of the name: “Airline operators of Nigeria.” This application was granted by the trial court inspite of opposition from the Respondent. See Page 113 of the Record. PAGE| PAGE * Arabic 3 The Respondent by Notice of Appeal dated 6th August, 2003 filed an appeal contesting the decision of the trial court. The Notice of Appeal contains 4 grounds.

The Notice of Appeal was subsequently amended pursuant to an order of the court below and the extant Notice of Appeal is the one dated the 8th day of January, 2004 at Pages 135 – 138 of the Record. The Appellant’s brief of argument at the court below dated 11th May, 2004 is at Pages 154-172 of the Record. In response to the Respondent’s brief of argument in the court below, the Appellant herein (as Respondent in that court) filed its own brief of argument. The said brief of argument which is dated the 28th of April, 2005 is at Pages 186 – 204 of the Record of Appeal.

In its said brief, the Appellant herein gave notice of a preliminary objection wherein he contended that: “The 1st Respondent’s objection is that the Appeal is not arguable”. The Appellant thereafter embedded argument in respect of the Preliminary objection in its brief. In reaction to the Appellant’s brief at the court below, the Respondent herein filed a reply brief dated 8th of June, 2005. See Pages 202 – 204 of the Record.

When the appeal came up for hearing on the 17th day of November, 2005, the Appellant herein was absent and was not represented by counsel, (pages 205 – 206 of the Record). Counsel to the Respondent herein then moved the court to strike out the Appellant’s (who was Respondent) objection for failure to file a formal notice of preliminary objection and to argue it orally in court whereupon the court below reserved judgment. The Judgment of the court below which is dated the 15th day of February, 2006 is at Pages 207 – 238 of the Record. In its said judgment the court below held that the objection of the Appellant fell foul of Order 3 Rule 15 of the Court of Appeal Rules, 2002 and accordingly adjudged it incompetent and discountenanced same. The court below then considered the appeal on its merit and allowed it. In a unanimous judgment, the court held that the Respondent herein had the power under the enabling law to charge the domestic en-route charges and the decision of the trial court was set aside. Dissatisfied with decision of the court below, the Appellant herein under the name “The Registered Trustees of the Airline Operators of Nigeria” filed a Notice of Appeal dated 20th March, 2006. The Notice of Appeal contains three grounds of appeal out of which the Appellant has formulated three issues for determination.

When this appeal came up for hearing on 3rd December, 2013, O. Jolaawo Esq., Counsel for the Appellant leading other Counsel adopted their brief filed on 4/5/2010 but deemed properly filed on 13/10/10. The three issues as contained in the said brief are as follows:- 1. Whether the appeal at the Lower Court was not incompetent in view of the fact PAGE| PAGE * Arabic 4 that the Respondent therein is not a “person”/body known to law. 2. Whether the Lower Court was not in error to have struck out the Appellant as Respondent’s Preliminary objection on the basis that it was not in compliance with Order 3 Rule 15 of the Court of Appeal Rides 2002 when the number of days between the filing of the preliminary objection in the brief and the 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 Agency Act empowers the Respondent as Appellant to levy in addition to ticket sales charges, “domestic enroute charges.” On the same date, Adetunji Oyeyipo, SAN who led another Counsel for the Respondent also adopted their brief filed on 9/1/12. In the said brief, three similar issues as that of the Appellant are also distilled.

They include: 1. Whether the appeal as constituted at the Court below was competent to allow the court to hear and determine the appeal on its merit. 2. Was the Court of Appeal right when it discountenanced the Appellant’s preliminary objection because the Appellant neither filed a formal notice of preliminary objection nor argued the objection orally before that court. 3. Has the Respondent, Nigerian Airspace Management Agency the power to levy, in addition to the ticket sales charge, any other charge including the domestic en-route charges under the Nigerian Airspace Management Agency (Establishment etc) Act Cap. N90 Laws of the Federation of Nigeria, 2004. Since both issues distilled by the Appellant and that of the Respondent speak the same language, I shall proceed to resolve them seriatim. It was the argument of the learned counsel for the Appellant on the first issue that although the Plaintiff (now Appellant) commenced this action at the trial court as Airline Operators of Nigeria, the said name was amended to “Incorporated Trustees of Airline Operators of Nigeria” and as such the amendment took effect from the date of commencement of the action, relying on the cases of ADEWUMI V. ATTORNEY GENERAL, EKITI STATE (2002) 2 NWLR (pt. 751) 474 at 506, AFOLABI V. ADEKUNLE (1983) 2 SCNLR 141. Learned Counsel contended that when the Respondent herein filed an appeal at the court below and deliberately used the Plaintiffs name which was before the amendment, he was suing a wrong party. That is to say, that the Respondent as Appellant at the lower court prosecuted its appeal against a “Respondent” who is not a person in law. He opined that the Respondent being an artificial person, its correct nomenclature ought to have been employed in prosecuting the matter against it at the lower court.

PAGE| 5 In conclusion, Learned Counsel submitted that the legal personality of the Appellant as Respondent before the lower court having been conferred by statute, the Respondent herein as Appellant at the Court of Appeal could not have properly been given judgment against the Respondent therein in any other name as a court cannot give judgment against a person not known to law. He cited and relied on the case of ABUBAKAR V. YAR’ADUA (2008) 19 NWLR (pt. 1120) I at 15 – 125 paras G – H. He urged the court to resolve this issue in favour of the Appellant. In his reply, the Learned Senior Counsel for the Respondent referred to the processes filed by the Appellant herein as Respondent at the Court below in which it referred to itself as “Airline Operators of Nigeria” and submitted that the parties were never in doubt as to the parties to the appeal. He argued further that where the parties to an appeal are not in doubt but the appeal is wrongly headed, it cannot affect the competence of the court to hear the appeal on its merit, relying on the following cases:- NOFIU SURAKATU V. NIGERIA HOUSING DEVELOPMENT SOCIETY LTD. (1981) 4 SC. 26, AKAI AKPAN UDO EKWERE V. THE STATE (1981) 9 SC. 3, GODWIN IKPASA V. THE STATE (1981) 9 SC. 5, ORUONYE ONWUNALIV. THE STATE (1992) 9 SC. 48. Furthermore, the Learned Senior Counsel submitted that an appeal is a continuation of the case from the court below and does not initiate a fresh case. According to him, since the trial court had held that the suit initiated under the name Airline Operators of Nigeria was competent enough to allow an amendment to the Incorporated Trustees of Airline Operators of Nigeria, the mistake in putting down the correct name of the Appellant in the heading of the Notice of Appeal does not go to the competence of the appeal. He then urged this court to resolve this issue against the Appellant.

The Appellant’s Counsel in his reply brief submitted that the defect in the Respondent’s Notice of Appeal (Appellant at the Court below) was in law much more fundamental than those in the authorities cited by the Respondent in its brief. That it is as to substance and not merely form. He urged this court to so hold. There is no modicum of doubt that the Appellant herein commenced this action at the High Court with the Name “Airline Operators of Nigeria.” Both parties attest to this as the facts are sacrosanct on it.

The matter was prosecuted with that name until the Appellant woke up from slumber and realized that such a name was unknown to law. It then filed a motion to have the name corrected which the learned trial judge obliged on the date judgment in the matter was delivered. That amendment, with all intents and purpose took effect from the date of the originating process filed. This is so because an amendment duly made takes effect from the date PAGE| PAGE * Arabic 6 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. Therefore, when the learned trial judge granted the amendment, it dated back to when the Originating Summons was issued and the action would continue as if the amendment was inserted from the beginning. See. ADEWUMI V. ATTORNEY-GENERAL, EKITI STATE, (2002) 2 NWLR (pt. 751) 474, IMONIKHE V. ATTORNEY-GENERAL, BENDEL STATE (1992) NWLR (pt. 248) 396, OJA V. OGBONI (1976) 1 NMLR 95, OKOLO V. UNION BANK OF NIGERIA LTD (1999) 10 NWLR (pt. 623), SHELL PETROLEUM DEVELOPMENT CO. NIG. LTD V. AMBAH (1999) 3 NWLR (pt. 593).l It is trite that in civil litigations, courts have a duty to aim at, and to do substantial justice and allow formal amendments as are necessary for the ultimate achievement of justice and the end of litigation. The amendment thus granted by the trial court was proper. Although the Respondent has touched a bit on this, it is not the main issue. The real issue, is that after the said amendment, the Respondent herein, as Appellant at the court below still used the name originally used to commence the suit at the trial court (for which amendment was effected) to prosecute its appeal. It is this that the Appellant herein is contending that judgment was given by the court below against a wrong party or a party unknown to law. 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. Juristic or legal personality can only be donated by the enabling law.

This can either be the Constitution or a 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. See ANYAEGBUNAM V. OSAKA (2000) 5 NWLR (pt. 657) 386, FAWEHINMI V. NIGERIAN BAR ASSOCIATION (NO. 2) (1989) 2 NWLR (pt. 105) 558 at 595, ABUBAKAR V. YAR’ADUA (2008) 19 NWLR (PT. 1120) I at 150 – 152 paras G – H. The rationale behind this is that law suits are in essence the determination of legal rights and obligations in any given situation. Therefore only such natural and juristic persons in whom the rights and obligations can be vested are capable of being proper parties to law suits before courts of law. I must say that the Respondent herein as Appellant at the Court below may have goofed when it decided to use the name of the Appellant herein as originally and inappropriately used at the trial court before the amendment. But was that fatal to the appeal? I do notthink so. It is trite that an appeal is a continuation of the case from the court below. It does not initiate a fresh case. As it were, the parties were not in doubt as to the parties to the appeal. Where p arties 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.

This is the view long held by this court in ORUONYE ONWUNALI V. THE STATE (1982) 9 SC 48 wherein Esho, JSC, (of blessed memory) held that: “This court has in the case of NOFIU SURAKATU V. NIGERIA HOUSING DEVELOPMENT SOCIETY LTD & ANOR. (1981) 4 SC. 26 overruled ADIS ABABA V. ADEYEMI (1976) 12 SC. 51 and since then technical grounds like wrong heading of an appeal does not fetter hearing an appeal on merit.” I strongly agree.

May be I should reiterate the view expressed by Aniagolu, JSC (of blessed memory) in JOSEPH AFOLABI & 2 ORS V. JOHN ADEKUNLE & ANOR. (1983) 2 SCNLR141 at 150 that:- “…it is perhaps necessary to emphasize that justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in a whirligig of technicalities, to the detriment of the determination of the substantial issues between them …” As I said earlier, there is nothing in the record to show that any of the parties was in doubt as to the parties or issues in court and there is no indication that there was any miscarriage of justice. In any case, this is a situation in law which is referred to as a misnomer. 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. In EMERPO J. CONTINENTAL LTD V. CORONA S. & CO., (2006) 11 NWLR (pt. 991) 365, this court held that a misnomer occurs when the correct person is brought to court in a wrong name. In the instant case, the Appellant herein actually initiated the suit giving birth to this appeal at the High Court with the name he is now abandoning. All the processes he filed at the court below bore that name even after the amendment was granted at the High Court. He did not contest that name at the court below. He has not shown how he has been affected by the use of that name. Let me state emphatically here that when both parties are quite familiar with the entity envisaged in a Writ of Summons and could not have been misled or have any real doubt or misgiving as to the identity of the person suing or being sued, then there can be no problem of mistaken identity to justify a striking out of the action. 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. The end result of all I have said above, is that this issue does not avail the Appellant at all. It is resolved in favour of the Respondent.

The second issue attacks the decision of the lower court which discountenanced the notice of preliminary objection given in the brief of the Appellant which was 1st Respondent at PAGE| PAGE * Arabic 8 the Court below. The said 1st Respondent’s brief was filed on 25th April, 2005 based on the lower court’s granting of extension of time for 21 days to file same. The Respondent herein as Appellant at the lower court filed its Appellant’s Reply Brief on 10th June, 2005 wherein it proffered arguments in reply to the 1st Respondent’s preliminary objection. The appeal giving rise to the instant appeal to this court was heard on 17th November, 2005. It was the contention of the Appellant that by Order 3 Rule 15 of the Court of Appeal Rules 2002, applicable at the date the appeal was heard at the court below, it was meant to put the Appellant on notice of the existence of the preliminary objection and not to spring a surprise on the Appellant at the hearing, relying on the case of AUTO IMPORT EXPORT V. ADEB AYO (2000) 18 NWLR (pt. 799) 554. It is his further submission that the time between when the Appellant at the lower court was put on notice of the preliminary objection and the time within which the appeal was taken being much longer than the three days required by the Court of Appeal Rules, and the fact evident from the record that the Appellant at the lower court did respond comprehensively to the preliminary objection in its Appellant’s reply brief, the purport and intendant of the said rules had been satisfied. It was further contended that although the Counsel for the Respondent at the court below was absent when the appeal was heard, and the lower court having invoked Order 6 Rule 9(5) of the Court of Appeal Rules 2002, and deeming the Respondent’s brief as argued, the preliminary objection being an intergral part of it, the lower court was in grave error to have discountenanced the notice of preliminary objection. He urged this court to resolve this issue in favour of the Appellant. In his reply, the Learned Senior Counsel for the Respondent submitted that when the Appellant and its Counsel were absent at the hearing of the appeal, it was proper for the court below to invoke Order 3 Rule 15 (i) & (3) of the Court of Appeal Rules 2002, to discountenance the notice of preliminary objection.

That the exercise of discretion by the court below to strike out the preliminary objection is unassailable. He relies on the case of OKORODUDU V. OKOROMADU (1977) 3 SC. 29 and UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR pt. 1) 143. According to Counsel, the discretion of the court to discountenance the preliminary objection instead of granting an adjournment was done judicially and judiciously. He submitted further that the decision of this court in AGBAKA V. AMADI (supra) relied upon by the Appellants was arrived at in the light of the peculiar circumstances of that case in that the objection taken by the Appellant in that case was very strong and the court held that where the grounds of appeal are vague or general in terms or disclose no reasonable ground of appeal, even the court could suo motu raise the issue and invite counsel to address the court on it. Learned Counsel concluded that apart from AGBAKA V. AMADI (supra), in a vast majority of cases in this court, the court insist that a party intending to rely on a preliminary objection to PAGE| PAGE * Arabic 9 the hearing of an appeal, must comply with the rules, citing these cases, to wit: NIGERIAN LABORATORY CORPORATION & ANOR. V. PACIFIC MARCHANT BANK LTD (2012) 15 NWLR (pt. 1324) 505 at 518 and CHIEF SUNDAY ORIORIE & ORS V. CHIEF SUNDAY OSAIN (2012) 16 NWLR (pt. 1327) 560 at 578. He urged this court to resolve this issue in favour of the Respondent. Let me start by looking at Order 3 Rule 15 of the Court of Appeal Rules 2002, applicable to the issue at hand. It states: “15 (1) A Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the Appellant three clear days notice thereof before the hearing setting out the grounds of the objection and it shall file such notice together with twenty copies thereof with the Registrar within the same time. (2) No objection shall be taken to the hearing of an appeal on the ground that the amount fixed by the Registrar of the Court below under Rule 8(1) of this Order were incorrectly assessed. (3) If the respondent fails to comply with this ride, the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the Respondent or may make such other order as it thinks fit.” The above rule of the Court of Appeal appears to me to be very clear and un-ambiguous. It often happens that a Respondent to an appeal may have issues which he considers strong enough to stop the hearing of an appeal. And because, the right of appeal is either given by the Constitution or an enabling Act of Parliament, the courts would not allow it to be taken away just like that. This is why the rules of court make it mandatory that a Respondent intending to rely upon a preliminary objection to the hearing of an appeal “shall” give the Appellant three clear days notice thereof before the hearing, setting out the grounds of the objection and shall file twenty copies with the Registrar within the same time. The provision is to give the Appellant sufficient notice of the objection so that he would not be taken by surprise. Order 3 Rule 15 (3) (supra) gives the court the discretion where a respondent fails to comply with this rule. The court may either refuse to entertain the objection or may adjourn the hearing at the cost of the Respondent or may make such other order as it thinks fit. This court has given judicial interpretation to the above rule of court particularly Order 3 Rule 15 (1) thereof on the issue of notice. It has been held that although the rule is that a respondent intending to rely on preliminary objection should give the Appellant three days notice before the hearing of the appeal, if such notice is given in the Respondent’s brief, it will suffice.

In other words, such notice can be given in the brief of the Respondent. In such situation, a Respondent need not thereafter give a separate notice. I refer to the decision of this PAGE| PAGE * Arabic 10 court in PATRICK D. MAGIT V. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS (2005) 19 NWLR (pt. 959) 211 at 238 page 239 paras A – C where this court, per Ogbuagu, JSC held as follows: “However, on a more serious note, the method of raising a preliminary objection, apart from giving the Appellant three clear days notice before the date of hearing, is now firmly settled. It may be in the respondent’s brief, by a formal separate notice or written objection or both. But there is need for a respondent or his counsel, ivith the leave of court, to move the objection before the hearing of the substantive appeal. See the recent case of TIZA & ANOR V. BEGHA (2005) 15 NWLR (pt. 949) 616, (2005) 5 SCNJ 168 at 178 – per Musdapher, JSC, citing the cases of CHIEF NSIRIM V. NSIRIM (1990) 5 SCNJ. 174, (1990) 3 NWLR (pt. 138) 285, OKOLO V. UNION BANK OF NIG. LTD (1998) 2 NWLR (pt. 539) 618, AREWA TEXTILE PLC V. ABDULLAHI & ANOR (1998) 6 NWLR (pt. 554) 508, AJIDE V. KELANI (1985) 3 NWLR (pt. 12) 285 at 257, 258. See also FAWEHINMI V. NBA (No. 1) (1989) 2 NWLR (pt. 105) 494 at 515, 516, (1989) 4 SCNJ, I and SALAMI V. MOHAMMED (2000) 9 NWLR (PT. 673) 469; (2000) 6 SCNJ. 281.” Again, on page 239 thereof, paragraph G, this court held that: “Since the learned counsel for the Respondent, never sought for leave to move the said objection neither did he breathe/say a word about it before or during the oral hearing of the appeal, the same, is deemed by me as having been abandoned.” That is the position of this court on this issue, at least for now. The complaint of the Appellant in this issue is that he not only gave notice of preliminary objection in the brief, he also argued the preliminary objection in the brief but the lower court discountenanced same merely because he and his counsel were not in court to move the court to consider same before the appeal was heard. That could have sounded as technicality especially as the Appellant at the court below (now Respondent) has replied to it in its reply brief. But this court has taken a firm decision on the matter. In a recent case of NATIONAL DEMOCRATIC PARTY (NDP) V. INDEPENDENT ELECTORAL COMMISSION (INEC) (2012) 12 SC. (pt. IV) 24 at 45, this court held as follows: “It is pertinent to refer to the notice of preliminary objection given by the Respondent on page 4 of its brief of argument. It is equally apposite to say that the said preliminary objection was not moved before this court though argued, hence same was deemed abandoned and liable to be discountenanced. It should PAGE| PAGE * Arabic 11 be noted that the preliminary objection raised by the Respondent in its brief of argument cannot be deemed argued along with the brief. This is because the Respondent is required to specifically seek leave of court and obtain same when the appeal is being heard to move its objection. Therefore, the Respondent not having been available to seek leave and obtain same to argue its preliminary objection, same is of no moment, it is deemed abandoned and liable to be struck out -See CHIEF NSIRIM V. NSIRIM (1990) 5 SC (pt. 11) 94; ONOCHIE & ORS V. ODOGWU & ORS (2006) 2 SC (pt. 11) 153, ATTORNEY GENERAL -RIVERS STATE V. UDE & ORS (2006) 7 SC (pt. 11) 133. Accordingly, the notice of preliminary objection incorporated in the Respondent’s brief of argument is hereby discountenanced and struck out” In view of the above unequivocal pronouncements of this court on this issue, the complaint of the Appellant on issue No. 2 cannot find solace in the mouth watering arguments which its counsel made in its brief, though commendable.

Where this court has made consistent pronouncement on an issue, no matter how a party feels to the contrary, he has no choice than to submit to the wisdom of this court and continue to pray that may be one day his feeling may become a reality. A Counsel who knows the decision of this court on an issue and yet does otherwise has himself to blame because this court thrives in even handed justice. I need not say more on this. Issue 2 is accordingly resolved against the Appellant. The third and final issue for determination in this appeal is whether the lower court was right in holding that Section 11 (b) (iv) Nigeria Airspace Management Agency Act empowers the Respondent as Appellant to levy in addition to ticket sales charges, “domestic en-route charges.” In his submission, the Learned Counsel for the Appellant, after making reference to Sections 7 (1) (r) and 11 of the Act (supra) submitted that the plain words of section 7 (1) (r) taken in their ordinary meaning mean that the payments made to the Respondent should be for services rendered. That it presupposes that the said services and the fact of their having been rendered ought to be specified before the Respondent can lawfully claim payment for them. According to him, paragraphs 7 (1) (a) – (q) provide for the functions which the Respondent is statutorily empowered to perform while Section 11 of the Act on its part, though it mentioned revenue from specific sources, does not confer any power to charge and that what it provides for is the duty to establish and maintain a fund into which shall be paid and credited fees accruing from the mentioned sources. He concluded that domestic en-route charges are not specified as services to be provided for and/or charged for by the Respondent. In reply, the Learned Senior Advocate of Nigeria for the Respondent submitted that Appellant’s construction of Section 7 and 11 of the Act is myopic. That for the Appellant to PAGE| PAGE * Arabic 12 require at this stage that the Respondent must establish that it has provided the said services is to attempt to set up a new case. He submitted that a Plaintiff cannot set up a new case other than that which it presented at the trial court, relying on the cases of ADEGOKE MOTORS LTD V. ADESANYA (1989) 3 NWLR (pt. 109) 250 at 266 and OREDOYIN V. AROWOLO (1989) 4 NWLR (pt. 114) 172 at 211. It was a further submission of the Learned Counsel for the Respondent that this action having been instituted by way of originating summons which by its very nature calls for the determination of the rights of the parties based on the construction of a law or written documents, parties are therefore not at liberty to begin to contest facts. In conclusion, the Learned Silk submitted that the objective of Section 7 of the Act is to vest in the Respondent responsibilities which include ensuring that air travel is safe both within the domestic air route and the international air route by providing services to make air travel safe. That Section 7 (1) (r) then gives the Respondent the power to charge for services provided by it. He urged this court to resolve this issue against the Appellant. In coming to its conclusion in the judgment giving birth to this appeal, the court below stated on page 228 of the record of appeal as follows: “Also, Appellant has the power to levy, in addition to the ticket sales charge per Section 11 (b) (iv) en-route local facility. Resultantly, the challenge to the lawful exercise by the Appellant of its powers is futile.” The above decision is what the Appellant herein has urged this court to set aside. As was rightly pointed out by the Learned Senior Counsel for the Respondent in their brief, the case of the Appellant at the trial court was an invitation to the court to interpret Section 7 (1) (r) of the Nigerian Airspace Management Agency (Establishment etc) Act Cap. No. 90, Laws of the Federation of Nigeria, 2004 as to whether the Agency i.e. the Respondent is entitled to impose a “so-called” Domestic En-Route Charges.” It was never their case that the Respondent did not establish that it has provided the services. I do agree with the Learned Counsel for the Respondent that for the Appellant to require at this stage that the Respondent must establish that it has provided the said services is to attempt to set up a new case other than that which it presented at the trial court. The contention of the Appellant at the trial court was not that the Respondent did not render the services for which it introduced the domestic en-route charges, rather its contention was that these services were part of what they paid for under the Ticket Sales Charge. 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. See ADEGOKE MOTORS LTD V. ADESANYA (supra) and OREDOYIN V. AROWOLO (supra). The end result is that all the arguments of the Appellant in this regard go to no issue and of no PAGE| PAGE * Arabic 13 moment. Having said that, I shall now examine the decision of the lower court in line with the provision of the Act in issue. For ease of reference, I shall reproduce Section 7 (1) and Section 11 of the Act which deal with functions of the Agency and Funds of the Agency respectively. Section 7 (1) provides: “7. Functions of the Agency” (1) The Agency shall: (a) provide air traffic services in Nigeria, including air traffic control, visual and non-visual aids, aeronautical telecommunications services and electricity supplies relating thereto, to enable public transport, private, business and military aircraft fly, as far as practicable and as safely as possible; (b) provide aerodromes at all the major Nigerian airports, the navigation services necessary for the operation of aircraft taking-off and landing and integrate them into the overall flow of air traffic within the Nigerian airspace; (c) minimize or prevent interference with the use or effectiveness of all apparatus used in connection with air navigation and for prohibiting or regulating the use of all such apparatus and the display of signs and lights liable to endanger aircraft and endanger the use of the Nigerian airspace; (d) generally secure the safety, efficiency and regularity of air navigation, as may be deemed appropriate from time to time; (e) require persons engaged in or employed in or in connection with air navigation, to supply meteorological information for the purpose of air navigation, as may be deemed appropriate from time to time; (f) provide adequate facilities and personnel for effective security of navigational aids outside the airport perimeters; (g) create conditions for the development, in the most efficient and economic manner, of air transport services. (h) procure, install and maintain adequate communication, navigation and surveillance and air traffic management facilities at all airports in Nigeria. (i) ensure an effective co-ordination in the use of the Nigerian airspace in line with established standards and procedures; (j) ensure the co-ordination at all levels of decisions relating to airspace management and air traffic control in Nigeria. (k) hold meetings with the armed forces on Nigeria’s international obligations as they relate to civil and military co-ordination; PAGE| PAGE * Arabic 14 (I) promote familiarization visits by civil and military personnel to air traffic service units; (m) maintain permanent liaison with the civil air traffic services units and all relevant air defence units, in order to ensure the daily integration or segregation of civil and military air traffic operating within the same or immediately adjacent portions of the Nigerian airspace, employing civil or military radars as necessary. (n) obviate the need for civil aircraft to obtain special air defence clearance; (o) take necessary steps to prevent, as far as possible, penetration of controlled airspace by any aircraft, civil or military without coordination with the air traffic control unit concerned. (p) encourage research and development relating to all aspects of the Nigerian airspace designed to improve air safety. (q) undertake systems engineering development and implementation for communications, navigation and surveillance and air traffic management. (r) charge for services provided by the Agency; (s) co-ordinate the implementation of search and rescue services; and (t) discharge the operational, technical and financial air traffic service commitments arising from Nigeria’s membership of international organization and other air navigation agencies”. Section 11 of the Act also provides: “11. Fund of the Agency There shall be established and maintained for the Agency a fund into which shall be paid and credited: (a) all subventions and budgetary allocation from the Government of the Federation; (b) all fees and funds accruing from:- (i) en-route local, international facility charges; (ii) overflight charges; (iii) charges on Class B messages; (iv) 30 per cent of the air ticket sales charges; (v) 30 per cent of the cargo sales charges; (vi) sales of information; (vii) violation of airspace fines; (viii) rentage of property, plant and equipment; PAGE| 15 (ix) contract registration fees. (e) all return on investments; (f) foreign aid and assistance from bilateral agencies; and (g) all other sums which may, from time to time, accrue to the Agency”. Now, what can we make out of the above provisions? 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. See ADISA V. OYINWOLA (2000) 10 NWLR (pt. 674) 116 at 174, ………………………………… Based on the myriad of functions of the Respondent listed in Section 7 of the Act reproduced above, Section 11 thereof clearly states the sources of income of the Respondent including Section 11 (b) (i) – “en-route local, international facility charges”, (b) (iv) – “30 per cent of the air ticket sales charges” amongst others. It gives the Agency the power to establish and maintain a fund which shall be paid and credited all fees and funds accruing from the sources listed therein including (b) (i) and (b) (iv) already set out above.

It follows unequivocally that one of the head of funds collectable by the Respondent is funds accruing from “en-route local, international facility charges.” I agree entirely with the court below that if the intention of the law maker is that “en-route local facility charges” should not be levied and collected by the Respondent, provision would not have been made for its lodgment in a fund created under Section 11 of the Act wherein 30% ticket sales charges which the Appellant conceded Respondent has the power to collect, are also paid into. It has to be noted that ticket sales charge is unmistakably a charge separately provided for by virtue of Section 11 (b) (iv) while that of en-route local charge is in Section 11 (b) (i). No matter how one looks at the provision, the Respondent is legally endowed to charge for “en-route local facility service.”

As I said earlier, the Appellant did not complain at the trial court that the Respondent did not establish that it had provided the said services. Rather it was that the Respondent has no power to levy the charges. For me, the Act establishing the Respondent proves otherwise. Accordingly, I agree with the lower court that based on the Section of the Act already stated, the Respondent has power not only to charge for 30 per cent air ticket sales but also to charge en-route local facility services.

This issue, as it turns out does not assist the case of the Appellant. On the whole, having resolved the three issues against the Appellant, it only needs to be said that this appeal is devoid of any scintilla of merit and is hereby dismissed. I award costs of N100,000.00 in favour of the Respondent.

SC149/2006