AERO CONTRACTORS COMPANY OF NIGERIA LIMITED v. MR. KINGSLEY OGUINE & ORS
(2018)LCN/12175(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/L/313/2014
RATIO
DAMAGES: GENERAL DAMAGES
“General damages are said to be damages which the law presume and which flow from the type of wrong complained about by the victim. They are compensatory damages, which require no specific pleading or proof but are solely within the discretionary power of the trial Court to grant. This Court in the case of CHIA V. FIRST BANK & ANOR (2018) LPELR-44140(CA) (Pp. 9-10, Paras. G-D), Per OTISI, J.C.A stated:- ‘General damages are such damages as the law will presume to be direct natural or probable consequence of the act complained of. They are such as the Court would award in the circumstance of a case, in the absence of any yardstick with which to assess the award except the expectations of a reasonable man. Unlike special damages, they need not be specifically pleaded and proved; general damages arise from inference of law; Yalaju-Amaye v Associated Registered Engineering Contractors Ltd (1990) LPELR-3511(SC); Incar (Nig) Ltd v Benson Transport Ltd (1975) LPELR-1512(SC); Kopek Construction Ltd v Ekisola (supra) also reported in (2010) LPELR-1703(SC); Xtoudos Services Nigeria Ltd v Taisei (WA) Ltd (2006) LPELR-3504(SC).'” PER JAMILU YAMMAMA TUKUR, J.C.A.
JURISDICTION: THE ISSUE OF JURISDICTION
“See: ANYANWU v. OGUNEWE & ORS (2014) LPELR-22184 (SC); and BRONWEN ENERGY TRADING LTD v. CRESCENT AFRICA (GHANA) LTD (2018) LPELR-43796 (CA). It is also correct to state that there are specific conditions that must be met before a Court can properly assume jurisdiction over a case. The applicable principles were clearly laid down in the popular case of Madukolu v. Nkemdilim, and recently restated in the caseOSI v. ACCORD PARTY & ORS (2016) LPELR-41388(SC) (P. 15, Paras. B-E) Per SANUSI, J.S.C of thus: ‘Before a Court can assume Jurisdiction on a matter or appeal it must be satisfied that the following conditions are met or satisfied, namely: (i) That it is properly constituted regarding the number and qualification of its member as the case may be...'” PER JAMILU YAMMAMA TUKUR, J.C.A.
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
AERO CONTRACTORS COMPANY OF NIG. LTD – Appellant(s)
AND
1. MR. KINGSLEY OGUINE
2. MRS. ESTHER CHIKA OGUINE
3. MRS GRACE AJUKA
4. MISS ELIZABETH CHISOM OGUINE – Respondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Federal High Court Lagos Division in SUIT NO: FHC/L/CS/1161/2009 delivered by Honourable Justice M.B. Idris on 5th July, 2013, wherein the Court gave judgment in favour of the Respondents.
The material facts leading to this appeal, are that the Respondents dissatisfied with the services provided by the Appellant with relation to transport by air instituted an action in the trial Court via a Writ of Summons dated 20th October, 2009 and claimed the following:
A. Payment of the sum of N2,054,500.00 (Two Million, Fifty Four Thousand, Five Hundred Naira) being the value of the items contained in the two large bags lost under the Defendant’s care and custody.
B. Payment of the sum of N35,000,000.00 (Thirty Five Million Naira) for breach of contract, cost of this action, humiliation, public disgrace and emotional crisis suffered by the Plaintiffs as a result of the loss of two large bags under the Defendant’s care and custody.
Both parties filed requisite processes and the matter was set down for trial. After a full trial, the learned trial Judge found that the Respondents had proven their case on the balance of probability and entered judgment in their favour. He granted the sum of N2,054,500.00 (Two Million, Fifty Four Thousand, Five Hundred Naira) as claimed and N10,000,000.00 (Ten Million Naira) for breach of contract, cost of this action, humiliation, public disgrace and emotional crisis suffered by the Respondents as a result of the loss of two large bags under the Appellant’s care and custody.
Dissatisfied with the above, the Appellant appealed to this Court vide a Notice of Appeal dated 29th July 2013 and filed on 29th November, 2013 with six grounds of appeal.
The Appellant’s Brief settled by Bidemi Ademola-Bello of Olajide Oyewole LLP is dated 20th March, 2017, and filed on 6th April, 2017, but deemed properly filed on 11th November, 2017.
Appellant’s counsel formulated three issues for determination to wit:
1. Whether given the state of the law, the facts and circumstance of this case, the learned trial Judge was right to hold that the limitation of liability clause in accordance with the Montreal Convention in a contract duly consented to by the parties would not be applicable in determining an award of compensation to an aggrieved party?
2. Whether or not the award of the whooping sum of N2,054,500.00 (Two Million, Fifty Four Thousand, Five Hundred Naira) as special damages and the sum of N10,000,000.00 (Ten Million Naira) for breach of contract, cost of this action, humiliation and emotional trauma suffered by the Respondents by the learned trial Judge was not excessive.
3. Whether or not the lower Court possessed the requisite jurisdiction to adjudicate on a suit filed by an incompetent or non-juristic party in a suit?
On the other hand, the Respondents’ Brief settled by Clement Onwuenwunor, Esq., was filed on 21st September, 2018 and deemed properly filed on 17th October, 2018.
Respondents’ counsel adopted the issues raised by the Appellant’s counsel.
I will therefore proceed to determine the appeal on the issues raised.
ISSUE ONE:
WHETHER GIVEN THE STATE OF THE LAW, THE FACTS AND CIRCUMSTANCE OF THIS CASE, THE LEARNED TRIAL JUDGE WAS RIGHT TO HOLD THAT THE LIMITATION OF LIABILITY CLAUSE IN ACCORDANCE WITH THE MONTREAL CONVENTION IN A CONTRACT DULY CONSENTED TO BY THE PARTIES WOULD NOT BE APPLICABLE IN DETERMINING AN AWARD OF COMPENSATION TO AN AGGRIEVED PARTY?
Learned counsel for the Appellant argued that the learned trial Judge???s decision was perverse and that this Court ought to invoke its power to re-evaluate the evidence where a trial Court fails to properly do same.
He relied on the cases of: British Airways v. Atoyebi (2010) 14 NWLR (Pt. 1214); Hamza v. Kure (2010) 10 NWLR (Pt.1023) 630, at 655 paras. A-C.
Learned counsel also argued that a contract of carriage by air is a contract with statutory flavour and the liability of the Appellant for loss of 1st Respondent???s luggage is clearly limited to $1,000.00 (One Thousand Us Dollars). The Court and the parties are bound by the terms of said contract.
He relied on the following:
Section 48(2) of the Civil Aviation Act 2006; Articles 22(2) and 29 of the Convention for the Unification for Certain Rules relating to International Carriage by Air.
Counsel submitted that the claim for the sums of N2,054,500.00 (Two Million, Fifty-Four Thousand, Five Hundred Naira) and the sum of N10,000,000.00 (Ten Million Naira), does not naturally flow from the alleged loss, and such an amount was not claimable under the contract.
He relied on the following:
Section 83 of the Evidence Act; Nneji v. Zakhem Con. Nig. Ltd (2006) 12 NWLR Pt.994-page 297 pp 319-320; Union Bank of Nigeria Plc v. Emmanuel Aderewaju Soares (2012) 11 NWLR Pt.1312 page 571 par B-C; and Archbishop Olubunmi Okogie & Ors v. Mrs Margaret Epoyun (2010) 11 NWLR (Pt.1206) page 479.
On the other hand, learned counsel for the Respondents argued that the learned trial Judge properly evaluated the evidence at trial and the decision arrived at is based on a proper evaluation of the facts and evidence therein.
He relied on the cases ofUdom v. Umana (No.1), (2016) 2 NWLR (Pt. 1526) 179 at 226 paras F-G; and FCDA v. Unique Future Leaders Intl Ltd (2014) 17 NWLR (Pt. 1436) 213 at 245 paras D-E.
Learned counsel posited that crucial facts which were established against the Appellant at trial, especially by the Appellant’s own admission, include the facts that the Appellant was aware that the Respondents flight was to Owerri, that the Respondents checked in two large bags with the Appellant, who recklessly tagged and routed the Respondents’ luggage to Abuja despite the fact there was no flight to Abuja at the relevant time.
He relied on the following:
Section 123 of the Evidence Act 2011; Jolasun v. Bamgboye (2010) 18 NWLR Pt. 1225, page 285 at 311 par C; Ogaji v. Ignoikon-Digbani (2010) 10 NWLR Pt. 1202 page 289 at 306 para G; Ogunleye v. Jaiyeoba (2011) 9 NWLR (Pt.1252) 339 at 351 paras H-A.
Counsel posited that Article 22(2) of the Convention for the Unification for Certain Rules relating to International Carriage by Air would not avail the Appellant with regards to the limitation of liability, because Article 22(5) clearly renders such limitation inapplicable in a situation as this one, as the damage here results from the wilful misconduct or negligence of the Appellant.
He relied on the case of British Airways v. Atoyebi (2010) 14 NWLR (Pt. 1214) 561.
Learned counsel submitted that there are no terms and conditions of a contract that could limit the liability of the Appellant as the document containing them was rejected as an exhibit by the trial Court on 25th January, 2013, hence cannot be relied upon by the Court.
He relied on the following cases:
Olufeagba v. Abdul-Raheem (2009) 18 NWLR (Pt. 1173) 384 @ 439-440 paras H-A; Hausa v. State (1994) 6 NWLR (Pt. 350) 281; ATP and JAS Nigeria Ltd v. Drake Skull Nig. Ltd (2003) 3 NWLR (Pt.649) 484 at 491; Jimoh Adebakin v. Sabitiyu Odujebe (1973) 1 NMLR 148; Union Bank Plc v. Ozigi (1994) 3 NWLR (Pt. 333) 385; Olagbemiro v. Ajagungbade III (1990) 3 NWLR (Pt.136); Etiko v. Aroyewun (1959) 4 FSC 129; Anyaebosi & Ors v. RT Bribcre (Nig) Ltd (1987) 6 SC 15; and Skye Bank Plc v. Chief Moses B. Akinpelu (2010) 9 NWLR (Pt.1198) 179.
RESOLUTION
Both parties and the trial Court are correct in agreeing that the provisions of the Convention for the Unification for Certain Rules relating to International Carriage by Air 1999 (the Montreal Convention) apply to air travel in Nigeria, this is the effect of the provisions of Section 77 (1) & (2) of the Civil Aviation Act of 2006, which repealed the Warsaw Convention of 1929 and gave the Montreal Convention force of law. The Civil Aviation Act domesticated the Montreal Convention and provided that the provisions of the Montreal Convention, as contained in the Civil Aviation Act and as amended from time to time, shall have the force of law. It fully incorporated the Montreal Convention and modified it to be applicable to domestic carriages within Nigeria. There is therefore no doubt that the Montreal Convention forms the basis of liability of air operators to passengers in domestic air carriage in Nigeria.
See:VIRGIN ATLANTIC AIRWAYS v. AMARAN (2018) LPELR-44785 (CA).
The main ground for disagreement is whether the limitation of liability on the Appellant’s part to $1,000.00 (One Thousand Dollars only) as provided in Articles 22(2) of the Montreal Convention apply to the circumstances of this appeal.
The first port of call in the resolution of this issue is to state that it is clear from the evidence on record that the Appellant is liable to the Respondents for the loss of their personal belongings in the two large bags wrongly routed to Abuja. This is in line with the straightforward provision of Article 17 of the Montreal Convention, that is:
The air carrier is liable for damage sustained in case of destruction or loss of, or damage to checked baggage if the event that caused the destruction, or loss or damage, took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier.
Article 22(2) of the Convention indeed limits the liability of the Airline. This is the simple meaning of its provisions, which are herein reproduced thus:
“In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1,000 Special Drawing Rights for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination.”
The learned trial Judge was well aware of correct principles of law with regards to the circumstances of the case before him and did take due note of them. He however did not apply the limitation of liability reflected above on the grounds that the actions of the Appellant falls within the parameters of situations where the limitation would not apply. It is indeed correct to state that where the loss of baggage (not cargo) was occasioned by the negligence or wilful misconduct, the liability principle above will not apply. The foregoing is a correct interpretation of the clear provisions of Article 22(5) of the Convention, which provides thus:
The foregoing provisions of paragraphs 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.
The decision of this Court in the case of EMIRATE AIRLINE v. AFORKA & ANOR (2014) LPELR-22686(CA),is clearly to the effect that the above stated provision applies to claims for baggage.
It is settled beyond any form of controversy that in interpreting a Statute or written agreement, the Court ought not consider specific segments in isolation, but look at them in relation with other provisions of the Statute or agreement as a whole.
The combined effect therefore of Article 22(2) and (5) of the Montreal Convention is that the limitation of the Carrier’s liability will not apply to cases of negligence where the subject matter of the claim is baggage. The rules as to cargo are different.
In light of the above, this issue is resolved in favour of the Respondents.
ISSUE TWO:
WHETHER OR NOT THE AWARD OF THE WHOOPING SUM OF N2,054,500.00 (TWO MILLION, FIFTY FOUR THOUSAND, FIVE HUNDRED NAIRA) AS SPECIAL DAMAGES AND THE SUM OF N10,000,000.00 (TEN MILLION NAIRA) FOR BREACH OF CONTRACT, COST OF THIS ACTION, HUMILIATION AND EMOTIONAL TRAUMA SUFFERED BY THE RESPONDENTS BY THE LEARNED TRIAL JUDGE WAS NOT EXCESSIVE.
Learned counsel for the Appellant argued that assuming the Appellant was liable in compensation over and above the limit stipulated by law, the amount awarded by the trial Judge was not commensurate with the loss suffered by the 1st Respondent.
Learned counsel also argued that damages though awarded at the trial Court’s discretion is subject to this Court’s review if the amount is ridiculously high or low. He submitted that the damages awarded here is not commensurate with the items lost, that is family pictures, and that exemplary damages could not have been the rationale behind the high amount awarded because the Appellant could not have deliberately misplaced the pictures of the Respondents, which would have merited punishment.
He cited the cases of Acme Builders Limited v. Kaduna State Water Board (1999) 2 NWLR (Pt. 590) 288; Eliochin Nig. Ltd Mbadiwe (1986) 1 NWLR (Pt. 14) 47; Odogu v. AG Federation (1996) 6 NWLR (Pt. 456) 508 SC.
On the other hand, learned counsel for the Respondents argued that the claim and award of the sum of SUM OF N2,054,500.00 (TWO MILLION, FIFTY FOUR THOUSAND, FIVE HUNDRED NAIRA) was based on special damages which was specifically proven at trial, by the testimony of the PW1 and PW2 in their Witness Statements on oath, dated 20th October, 2009, together with several receipts of purchase for the items in the lost luggage tendered through PW1.
Learned counsel also argued that the claim for N35,000,000.00 (Thirty Five Million Naira) and the award of N10,000,000.00 (Ten Million Naira) was based on general damages, flowing from damage suffered from the breach of contract, cost of action, emotional trauma, and public ridicule suffered at the burial of 1st Respondent’s deceased mother, due to failure to make use of the items lost.
He cited the cases of A. Intl Ltd v. S.K Intl Ent. Ltd (2010) 13 NWLR (Pt. 1211) page 270 at 296 paras E-F; and British Airways v. Atoyebi (Supra).
RESOLUTION
The rules as to damages are trite. Damages can be described as compensation in money given to a successful plaintiff in compensation for loss or harm suffered by him. Put in another way, Damages refer to the money paid or awarded to a claimant or a successful plaintiff in a civil action. Damages in their fundamental character are compensatory.
See: UBN PLC v. CHIMAEZE (2014) LPELR-22699 (SC); PRESENTATION NATIONAL HIGH SCHOOL & ORS v. OGBEBOR (2018) LPELR-44784(CA); and J. I. EFEMINI & SONS (NIG) LTD v. UBA PLC (2018) LPELR-44153(CA).
The two most common forms of damages, and which the trial Court awarded in this matter are special damages and general damages.
The Supreme Court in the case of IGHEDO & ANOR V. PHCN (2018) LPELR-43863 (SC) Per ARIWOOLA, J.S.C. (Pp. 55-56, Para. C), gave a succinct exposition of the rules that apply to when and how special damages should be awarded thus:
“It is trite law that “where the precise amount of a particular item has become clear before the trial, either because it has already occurred or so becomes crystallized or because it can be measured with complete accuracy, this exact loss must be pleaded as special damages.”
In the recent case of AJIGBOTOSHO v. RCC (2018) LPELR-44774 (SC) Per MUHAMMAD, J.S.C. (Pp. 20-21, Paras. E-A), the Supreme Court stressed the importance of proving every item claimed before an award of special damages may be granted when it held thus:
“It is settled that a claim for special damages succeeds only on the strict proof of the specifically pleaded facts in relation to the sum claimed. Where items of special damages are not specified and strictly proved as in the instant case, recovery of same will not be granted.” See: YENKARTI & ANOR v. ABBAH & ORS (2017) LPELR-43032(CA); and EKIYE v. FRCNÂ (2018) LPELR-44116(CA).
The implication of the above is that once the Claimant is able to prove the specific heads, then he is entitled to the special damages claimed. In granting the Respondents’ claim for special damages, the learned trial Judge at pages 282 to 284 of the records, clearly relied on the specific pecuniary losses incurred by the Respondents and successfully established by them, through their witness statements on oath and exhibits tendered and admitted in Court.
From the evidence on record the Appellant failed to impeach the depositions of the witnesses called by the Respondents with regard to the claim for special damages. Exhibits G- G3 which were the proforma invoice and receipts in proof of the items claimed were not disputed and neither were they impeached even under Cross Examination of the two witnesses called by the Respondents as captured at pages 111-112 and page 113 of the record. I therefore agree with the learned trial Judge that the Plaintiffs (Respondents’) have successfully established their claim for special damages.
Now the Respondents as Plaintiffs in the lower Court also claim general damages in the sum of N35,000,000.00 (Thirty five Million naira) only.
General damages are said to be damages which the law presume and which flow from the type of wrong complained about by the victim. They are compensatory damages, which require no specific pleading or proof but are solely within the discretionary power of the trial Court to grant.
This Court in the case of CHIA V. FIRST BANK & ANORÂ (2018) LPELR-44140(CA) (Pp. 9-10, Paras. G-D), Per OTISI, J.C.A stated:-
“General damages are such damages as the law will presume to be direct natural or probable consequence of the act complained of. They are such as the Court would award in the circumstance of a case, in the absence of any yardstick with which to assess the award except the expectations of a reasonable man. Unlike special damages, they need not be specifically pleaded and proved; general damages arise from inference of law; Yalaju-Amaye v Associated Registered Engineering Contractors Ltd (1990) LPELR-3511(SC); Incar (Nig) Ltd v Benson Transport Ltd (1975) LPELR-1512(SC); Kopek Construction Ltd v Ekisola (supra) also reported in (2010) LPELR-1703(SC); Xtoudos Services Nigeria Ltd v Taisei (WA) Ltd (2006) LPELR-3504(SC).”
See: ELF PETROLEUM v. UMAH & ORS (2018) LPELR-43600 (SC); KUBURI INTL TRADING CO. LTD & ANOR v. MUSTI & ANOR(2018) LPELR-44004(CA); and OKANU v. OKANU & ANOR (2018) LPELR-45021(CA).
The learned trial Judge in the judgment awarded the sum of N10,000.00 (Ten Million Naira) to the Plaintiffs as general damages for breach of contract, cost of this action humiliation, public disgrace and emotional crises suffered by the Plaintiffs as a result of the loss of the two large bags under the defendants care and custody.
Now learned counsel for the Appellant have invited us to review this award as being excessive. Now the law is trite that while this Court has the authority to review an award made for damages by a trial Court the circumstances in which it is empowered are narrow and limited to where;
(a) The grant by the trial Court was predicated on a wrong principle of law;
(b) Where the Trial Court did not take into consideration relevant facts; or
(c) Where the amount is too high or too low;
See:UBN PLC V. CHIMAEZE (2014) LPELR 22699 (SC); VIRGIN ATLANTIC AIRWAYS V. AMARANÂ LPELR 44785 (A), UMAR & ORS V MANAGING DIRECTOR FHA ABUJA & ANOR (2018) LPELR -44703 (CA).
In the instant appeal, learned counsel for the Appellant complained that the award for general damages in the sum of N10,000,000.00 was excessive. Now as I pointed out earlier the learned trial Judge not only granted the claim for special damages but awarded the sum of Ten Million Naira as general damages against the Appellant. It seems to me that the grant of the claimed for special damages has fully compensated the Respondents for the loss of the properties involved and the award of the additional sum of Ten Million Naira as general damages is in my view excessive upon a consideration of the totality of the evidence on record. The whole essence of the award of damages is to put the person damnified by the act of the defendant in the position in which he would have been if he had not suffered the damage for which he is being compensated. Damages are awarded on sound legal principles and not on sentimental or Arbitrary grounds. See: ANAMBRA STATE SANITATION AUTHORITY & ANOR V. EKWENEM 2009 LPELR 482 (SC); SOETAN & ANOR V. OGUNWOÂ (1975) LPELR, 3089 (SC).
In the instant case, I am of the firm view that with the grant of the special damages to the Respondents by the lower Court, the award of the princely sum of Ten Million Naira to the Respondents as general damages by the learned trial Judge was excessive.
Given the nature and circumstance of the case, I am of the view that an award of the sum of Two Million Naira (N2,000.000.00) as general damages will meet the Justice of the case
This issue is partly resolved in favour of the Respondents on the award of special damages and partly in favour of the Appellant with regard to the award of general damages.
ISSUE THREE:
WHETHER OR NOT THE LOWER COURT POSSESSED THE REQUISITE JURISDICTION TO ADJUDICATE ON A SUIT FILED BY AN INCOMPETENT OR NON-JURISTIC PARTY IN A SUIT?
Learned counsel for the Appellant argued that the 4th Respondent was not privy to the contract of carriage between the parties and as such ought not to be a party to the case at trial.
Learned counsel also argued that 4th Respondent, a minor, does not have the legal capacity to sue and her being part of the suit robbed the lower Court of jurisdiction to hear the matter. He further argued that the absence of a written authority constituting the 1st Respondent as the next friend of the 4th Respondent, meant there was no proper representation.
He relied on the following:
Order 9, Rule 11 of the Federal High Court (Civil Procedure Rules) 2009; Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003) SC 466; Olowo Okukuje v. Odejenima Akwido (2001) 1 SC Pt. II; Augustine Ndulue v. Nwankwo Ibezim & Anor (2002) 12 NWLR Pt.780, page 165 para. D-F; E.I.I.A v. C.I.E. Ltd (2006) 4 NWLR (Pt.969) CA 114 at 128, C-D; Emecheta v. Ogueri (1996) 5 NWLR (Pt. 447) CA 227 at 240-241, G-A; Trustees P.A.W. Inc. v. Trustees, A.A.C.C (2002) 15 NWLR (Pt. 790) CA 424 at 446; Umar v. W.G.G. Nig. Ltd (2007) 7 NWLR (Pt. 1032) CA 117 at 150, F-H; and Madukolu v. Nkemdilim (1962) 1 ALL NLR 587 at 594.
Learned counsel for the Respondents argued that parties are bound by their pleadings and that since the issue of capacity of the 4th Respondent was not pleaded at trial, same should be discountenanced by this Court.
Learned counsel also argued that the actions of the Appellant affected the 4th Respondent who sued in the manner allowed by law, that is through her next friend.
He relied on Order 9 Rule 10 of the Federal High Court Rules 2009.
RESOLUTION
There is no doubt that the issue of jurisdiction is fundamental, and sui generis, in that without it a Court cannot properly adjudicate a matter and it can be raised at anytime, by any of the parties, even the Court suo motu, orally or by application.
See: ANYANWU v. OGUNEWE & ORS (2014) LPELR-22184 (SC); and BRONWEN ENERGY TRADING LTD v. CRESCENT AFRICA (GHANA) LTD (2018) LPELR-43796 (CA).
It is also correct to state that there are specific conditions that must be met before a Court can properly assume jurisdiction over a case. The applicable principles were clearly laid down in the popular case of Madukolu v. Nkemdilim, and recently restated in the caseOSI v. ACCORD PARTY & ORS (2016) LPELR-41388(SC) (P. 15, Paras. B-E) Per SANUSI, J.S.C of thus:
“Before a Court can assume Jurisdiction on a matter or appeal it must be satisfied that the following conditions are met or satisfied, namely: (i) That it is properly constituted regarding the number and qualification of its member as the case may be.
(ii) That the subject matter of the action or appeal is within its Jurisdiction as governed or donated to it by Law. (iii) That the action or appeal is initiated by due process of Law; and, (iv) Any condition precedent to the exercise of its Jurisdiction must be fulfilled or met. See Madukolu v. Nkemdilim (ALL NLR 687); Dangana Anor v. Usman & 4 Ors (2012) 2 SC (pt III) NURTW & Anor v. RTEAN & Ors (2012) 1 SC (pt I) 119.”
See: GOVERNING COUNCIL OF NTI, KADUNA & ANOR v. NASU (2018) LPELR-44557(CA); NDIC v. MOHAMMED & ORS(2018) LPELR-44744(CA); and JEGEDE v. AFE & ANOR (2017) LPELR-43232(CA).
There is however a distinction between a procedural jurisdiction issue and an issue of substantial jurisdiction. The Supreme Court in the case of A.G KWARA STATE & ANOR v. ADEYEMO & ORS (2016) LPELR-41147(SC) (Pp. 14-15, Paras. E-C) Per RHODES-VIVOUR, J.S.C., gave a comprehensive exposition of this distinction thus:
“Jurisdiction is a question of law. There are two types of jurisdiction: 1. Jurisdiction as a matter of procedural Law 2. Jurisdiction as matter of substantive Law. A litigant may waive the former. For example a litigant may submit to a procedural jurisdiction of the Court where a writ of Summons has been served outside jurisdiction without leave or where a litigant (the defendant) waives compliance by the claimant of pre-action notice. No litigant can confer jurisdiction on the Court where the Constitution or Statute says that the Court does not have jurisdiction. Why is jurisdiction as a matter of procedural law allowed to be waived but not allowed in the case of substantive law. I gave two examples earlier on when jurisdiction in the former can be waived. I now explain. Section 99 of the Sheriffs and Civil Process Law, provides for 30 days to serve process if the defendant is outside the jurisdiction of the Court. The purpose of a pre-action notice is to give the defendant, usually an agency of Government enough time to negotiate and reach settlement with the claimant, or decide whether it makes sense to submit to jurisdiction and go through a full bloom trial at great expense to resolve the issue in controversy. In both cases, 30 days for service of processes out of jurisdiction and the pre-action notice are for the benefit of the defendant.
The position of the law is that where a statute gives a party a benefit he may waive it, thereby conferring jurisdiction on the Court to hear the matter. Put in another way, conditions contained in a statute for the benefit of a person or class of persons can be waived by the person/s to benefit from it. See; Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) p. 255, Ezomo v. Oyakhire (1985) 1 SC p. 6, Nwabueze v. Okoye (1985) 1 NWLR (Pt. 2) p. 195. On the other hand where the right conferred by the Constitution or Statute involves an element of public policy, i.e. of interest to the public, such a right cannot be waived. See Ariori v. Elemo (1983) 14 NSCC p. 1.” See: APC v. LAWRENCE & ORS (2018) LPELR-43662(CA); AG ONDO STATE & ORS v. OKITIPUPA OIL PALM PLC & ORS (2015) LPELR-25800 (CA); and ARUWAJU v. ASHARA (2014) LPELR-22735(CA).
The key difference between the two forms of jurisdiction is that the issue of procedural jurisdiction can be waived, thus it must be raised at the earliest opportunity. In light of the facts of this appeal, Appellant’s complaint as to the legal capacity of the 4th Respondent constituting a bar on the exercise of jurisdiction by the lower Court ought to have been raised at the trial Court, preferably by a preliminary objection. His failure to so do, therefore means that he is deemed to have waived it.
See: KALU V. FEDERAL REPUBLIC OF NIGERIA & ORS (2012) LPELR-9287 (CA); and TALLEN & ORS v. JANG & ORS (2011) LPELR-9212(CA).
In light of the above, this issue is resolved in favour of the Respondents.
In summation, the Appeal fails and dismissed. The judgment of the lower Court delivered on 5th July, 2013 is affirmed save for the award of Ten Million Naira general damages which is reduced to the sum of Two Million Naira only.
There shall be costs of N200,000.00 in favour of the Respondents against the Appellant.
MOHAMMED LAWAL GARBA, J.C.A.: I agree.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I read before now the exhaustive judgment prepared by my learned brother, Jamilu Yammama Tukur, J.C.A., with which I agree with nothing extra to add.
Appearances:
Abiola TellaFor Appellant(s)
John Hodo, Esq. For Respondent(s)
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