AWAWU OLULU OTOAKHIA v. AERO CONTRACTOR NIGERIA LIMITED (2014)

AWAWU OLULU OTOAKHIA v. AERO CONTRACTOR NIGERIA LIMITED

(2014)LCN/7349(CA)

In The Court of Appeal of Nigeria

On Friday, the 4th day of July, 2014

CA/B/299/2010

RATIO

COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION TO ANY PROCEEDING AND THE CONSEQUENCE OF THE LACK OF THE SAME

Jurisdiction is the authority a court has to decide matters before it, or to take cognisance of matters presented before a court for its determination. It has long been decided that jurisdiction hits at the foundation of adjudication by a court of law. A determination of a matter, by a court is null and void if done without jurisdiction, and it does not matter whether the proceedings were well conducted or the resolution well decided. Consequently it is usually considered expedient to resolve same first before proceeding further to decide the matter on the merit. A.G. Rivers State vs. A.G. Akwa Ibom State (2011) 8 NWLR (Pt.1248) 31 at 95; P.D.P. vs. Sylva (2012) 13 NWLR (Pt.1316) 85 at 144; Mobil Producing (Nig) Ltd. vs. Monokpor (2003) 18 NWLR (Pt.852) 346. per. HAMMA AKAWU BARKA, J.C.A.

COURT; JURISDICTION; WHETHER THE COURT HAS INHERENT POWER TO DECIDE WHETHER OR NOT IT HAS JURISDICTION TO ENTERTAIN OR DEAL WITH A MATTER AS A THRESHOLD ISSUE

It is trite that a court has the inherent power to decide whether or not it has jurisdiction to entertain or deal with a matter as a threshold issue. This it does when its jurisdiction is challenged and or even on its own motion. per. HAMMA AKAWU BARKA, J.C.A.

COURT: JURISDICTION; WHETHER THE JURISDICTION OF THE COURTS ARE DERIVED FROM THE CONSTITUTION AND THE SCOPE OF THE JURISDICTION OF THE STATE HIGH COURT AND FEDERAL HIGH COURT UNDER THE CONSTITUTION

It is trite that the powers and jurisdiction of the courts are derived from the Constitution, and the statutes that create the court, and other enabling laws.

COURT: JURISDICTION; HOW IS THE JURISDICTION OF THE COURT RESOLVED

It is a settled principle of law that the jurisdiction of a court to entertain a suit is resolved by a scrupulous examination of the writ of summons, the statement of claim and the relief’s claimed. No other document should be examined, definitely not the statement of defence. Where the originating process is an originating summons, the affidavit filed in support of the originating summons serves as the plaintiff’s pleadings. P.D.P. vs Sylva (supra) at P.127; Oloruntoba-Oju vs. Abdul-Raheem (2009) 26 WRN 1 at 15. per. HAMMA AKAWU BARKA, J.C.A.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

AWAWU OLULU OTOAKHIA Appellant(s)

AND

AERO CONTRACTOR NIGERIA LIMITED Respondent(s)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Hon. Justice J.O. Okeaya-Inneh of the Edo State High Court, Benin Judicial Division delivered on the 19th of May, 2010.

The facts giving rise to this appeal as can be garnered from the records are as follows:
The appellant as plaintiff at the Lower Court filed an action, by way of a writ of summons, dated the 23rd of July, 2008. The appellant, in her evidence before the Lower Court, narrated that she procured a return ticket No.LB 041681E for Benin – Lagos – Benin flight, from the defendants/respondents on the 7th of April, 2008. On the 8th of April, 2008, she was to travel from the Lagos airport to Benin airport, but instead, the appellant was taken to Warri, contrary to the agreement contained in her ticket and boarding pass. Consequently, the appellant incurred costs and suffered damages, having missed all her engagements and appointments in Benin City on that day.
Wherefore she claims:
“i. N2,000,000 (Two Million Naira) being general damages for breach of contract on the 8th of April, 2008, from the defendant by taking the plaintiff to Warri as against the contractual obligation to take her to Benin City.
ii. N2,000,000 (Two Million Naira) being special damages for the shock, psychological trauma and hardship suffered by the plaintiff as a result of the delay and for not been able to meet up with her important appointments.
iii. N850,000 (Eight Hundred And Fifty Thousand Naira) as exemplary damages.
iv. N150,000 (One Hundred And Fifty Thousand Naira) as legal fee for this suit.
v. Any other cost(s) the court may deem fit to make in the circumstance.”

The respondent at the Lower Court filed a statement of defence dated the 5th of May, 2009, and nine months later, filed a motion on notice asking the court to strike out the suit for lack of jurisdiction.

The learned judge after taking arguments from both parties, ruled in favour of the respondents to the effect that the proper court to hear the suit is the Federal High Court, and struck out the suit for want of jurisdiction.

It is against this ruling of the court, that the appellant now appeals to this court by way of a notice of appeal dated the 1st of June, 2010, containing two grounds of appeal; seeking an order of this court setting aside the ruling/decision of the Lower Court delivered on the 19/5/2010, and remitting the suit back to the Edo State High Court to be determined on its merits by a different judge. The records in this appeal were transmitted to this court on the 31/8/2010. The application deeming the records as having been properly filed was orally taken and granted on the 6th of March, 2014.

The appellant’s brief of argument filed on the 21/10/2010, was deemed filed on the 6th of March, 2013, while the respondent filed his reply brief on the 7th of December, 2012, also deemed filed on the 4th of March, 2013.

On the 11th of June, 2014, both parties adopted their written briefs. The appellant by their brief of argument, dated and filed on the 21/10/2010, and deemed filed on the 6/3/2013, formulated two issues for the resolution of the appeal. They are as follows:
“1. Whether the learned trial Judge was right when he held that the appellant claim does not border on breach of contractual obligation but relates to matters arising from aviation and safety of aircraft, under S.251(1)(k) of the 1999 CFRN, or pertaining to carriage of passengers and Goods under S.2 of the Federal High Court (Amendment) Decree No.60 of 1991.
2. Whether the learned trial Judge was right when he held that the claim of the plaintiff is not the major determinant factor for the jurisdiction of the court.”

For the respondent, the respondent’s brief of argument, dated and filed on the 7/12/2012, but deemed filed on the 4/3/2013 proposed a single issue in the following manner.
“Whether by virtue of Section 272 and S.251(1)(K) of the 1999 Constitution and S. 7(1) of the Federal High Court Act, 1973 as amended by the Federal High Court (Amendment) Decree No. 60 of 1991, the Edo State High Court has jurisdiction to entertain the claim of the appellant.”

Looking at the two set of issues formulated, it is clear that they are the same though slightly and differently couched. As a result, I shall use the two issues formulated by the appellant.

Arguments
The appellant’s arguments on his issue 1, are contained in pages 4-5 of the brief.

Counsel submits that the trial court was in error, when he held that the appellant’s claim was principally in relation to matters arising from aviation and safety of aircraft under S.251(1) (k) of the 1999 Constitution and pertains to carriage of passengers and goods under S.2 of the Federal High Court (Amendment) Decree No. 60 of 1991.

He goes on to submit that by paragraphs 8, 9 and 16 of the statement of claim, the appellant’s claim is based on breach of contract by the respondent, for being unable to airlift the appellant from Lagos to Benin as expressly shown on the flight ticket and boarding pass issued to the appellant. He argues that the ticket confirms that the nature of the transaction between the parties was one of contract as indicated on the top left hand corner of the ticket.

Contending that the appellant having been taken to Warri, as against Benin City, in breach of the contract, and paragraph 16 of the statement of claim for five million naira being for damages for breach of contract, the appellant’s claim does not in any way relate to aviation and safety of aircraft such as to bring it within the purview of S.251 (1) (k) of the Constitution of the Federal Republic of Nigeria, 1999.

Alluding to the provision of S.251(1) (k) and the case of Adelekan vs. Ecu-Line N.V (2006) 8 MYSC 142 at P.145, counsel submits that the appellant and the respondent entered into a simple contract for an agreed valuable consideration. The agreement sealed is in respect of the payment of the money demanded and the issuance of a flight ticket and boarding pass.

Counsel further alluded to S.272(1) of the Constitution which gives jurisdiction to a High Court of a State, and argues that at nowhere in the processes before the court, matters relating to aviation, safety of aircraft or carriage of passengers, or goods, or issues arising there from or ancillary thereto indicated.

Conclusively, counsel argues that Decree No. 60 of 1991 is not applicable to the appellant’s case.

On his second issue, counsel posits that the jurisdiction of a court is determined mainly by the nature of the claim as settled by numerous cases. Referring to the cases of Anyanwoko vs. Okoye (2010) 18 WRN 34 at 41; Ayonronmi vs. NNPC (2010) 16 WRN 50 at p.55 and Oloruntoba-Oju vs. Abdul Raheem (2009) 26 WRN 1 at 15, counsel submits that jurisdiction of a court is determined by the nature of the claim as against the event that gave rise to the claim.

Finally, counsel submits that the jurisdiction of a court is determined by the pleadings and not the statement of defence. He relied on the case of Cemar Shipping vs. Cindy GAIA (2006) 4 FWLR 7004 at P. 7006 -7007.

The learned counsel for the respondent arguing his appeal contained at pages 3 – 8 of the brief, submits that it is the plaintiff’s claim that determines whether the plaintiff has jurisdiction or not. Reviewing the case of Ecu-Line vs. Adelekan (supra) cited by the appellant, counsel submits that the case has no bearing to the present case.

Counsel refers to s. 48(2) of the Civil Aviation Act, 2006, which implements the conventions for the unification of certain rules relating to international carriage by air signed at Montreal on 28/5/1999 as modified, and submits that the appellant’s claim is governed by the convention.

Referring to the case of Patkun Industries ltd vs. Niger Shoe Manufacturing Company Limitation (1988) 5 NWLR (Pt. 93) 138 at 152, counsel submits that the trial court was right to hold that appellant’s claim was that of carriage of passengers by air.

On whether the High Court has jurisdiction to entertain the claim, counsel argues that S.272(1) of the Constitution confers jurisdiction on State High Courts; subject to the provision of S.251(1), and other provisions in the constitution. He submits also that S. 251(1) allows for additional jurisdiction by an act of the National Assembly, and the Federal High Court Act as amended by Decree No. 60 of 1991, conferred additional jurisdiction on the Federal High Court, to include the carriage of goods and passengers by air.

Counsel cited Sections 2(7)(1), to 2(7)(5) and submits that by the combined provisions of S. 251(1) of the Constitution and S.7(1) of the Federal High Court Act, as amended by Decree 60 of 1991, the Federal High Court has exclusive jurisdiction pertaining to carriage of passengers and goods by air and meteorology. He argues that by the limitation in S.272(1) the State High Court lacks the jurisdiction to hear the appellant’s claim.

Resolution
On issue one
Whether the Learned trial Judge was right when he held that the appellants claim does not border on breach of contractual obligation but relates to matters arising from Aviation and Safety of Aircraft under S.251(1) (k) of the 1999 Constitution, or pertaining to carriage of passagers and goods under S2 of the Federal High Court (Amendment) decree no.60 of 1991.

A determination of a matter, by a court is null and void if done without jurisdiction, and it does not matter whether the proceedings were well conducted or the resolution well decided. Consequently it is usually considered expedient to resolve same first before proceeding further to decide the matter on the merit. A.G. Rivers State vs. A.G. Akwa Ibom State (2011) 8 NWLR (Pt.1248) 31 at 95; P.D.P. vs. Sylva (2012) 13 NWLR (Pt.1316) 85 at 144; Mobil Producing (Nig) Ltd. vs. Monokpor (2003) 18 NWLR (Pt.852) 346.

The respondent went to court, because she bought a return ticket from the respondent on the 7th of April, 2008 for a flight from Benin to Lagos and then back to Benin, and while returning from Lagos to Benin, the appellant was taken to Warri in breach of the contract between her and the respondent.

This fact as narrated is not what is in dispute. The vexed question is whether the State High Court (to which the appellant approached for relief) had the requisite jurisdiction to hear and determine the case before it. While the respondent and the Lower Court held that it lacked the jurisdiction to entertain the matter, the appellant argues that the State High Court by virtue of S.272(1) of the Constitution of the Federal Republic of Nigeria, 1999 is vested with jurisdiction, as the complain borders on contractual obligation as well as issues relating to legal right, power, duty, liability, privilege interest, obligation or claim.

It is trite that the powers and jurisdiction of the courts are derived from the Constitution, and the statutes that create the court, and other enabling laws.

Now S.272 (1) gives the State High Court unimpeded jurisdiction, subjecting it only (with regards to the present matter) to the provisions of S.251, and other provisions of the Constitution. The jurisdiction of the Federal High Court on the other hand has limited jurisdiction, in that it can only entertain matters enumerated under S.251(1) of the Constitution. The section however does not limit the jurisdiction of the Federal High Court to those issues enumerated above only, but goes further to donate under 251(1)-
“In addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly.”
The respondent argues rightly in my view, that in the light of the proviso limiting the jurisdiction of the State High Court, matters listed under S.251(1) of the Constitution cannot be entertained by the State High Court. It has been argued that the Federal High Court Act, 1973 as amended by Decree No. 60 of 1991, being an Act of the National Assembly conferred additional jurisdiction on the Federal High Court to include the carriage of goods and passengers by air. It has equally been argued that S. 251(1) of the 1999 Constitution should be read in conjunction with the provisions of the Federal High Court Act of 1973 so amended by Decree No. 60 of 1991.
I do not see the issue differently. The consequence of the amendment to the Federal High Court Act of 1973, by Decree No. 60 of 1991, effected as follows:-
S.2(7)(1)(L) now reads:-
“Aviation, safety of aircraft and carriage of passengers and goods by air and metrology.”
S.2(7)(3) goes on to Provide:-
“Where jurisdiction is conferred upon the court under sub sections 1 and 2 of this section, such jurisdiction shall be construed to include jurisdiction, to hear and determined all issues relating to, arising from or ancillary to such subject matter, and
S.2(7)(6) 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 to which jurisdiction is conferred on the court under this section.”
It appears to me, that, where the provision of S. 272(1), and 251(1) of the Constitution are construed, giving their literal meaning, the sections anticipates and will accommodate the acts of the National Assembly for instance the Federal High Court Act, 1973 as amended by Decree No. 60 of 1991.

This court in the cases of KLM Airline vs. Kumzhi (2004) 8 NWLR (Pt.875) 23; Kabo Air Ltd vs. Oladipo (1999) 10 NWLR (Pt.623) 517, agreed that the combined understanding of the provisions of the Federal High Court Act 1973, as amended by Decree No. 60 of 1991, is to oust the jurisdiction of the State High Court, in matters relating to matters covered under Section 251 (1) (k) as amended by the Federal High Court Act, 1973 as supplemented by Decree No.60 of 1991; and aimed at increasing the scope of the jurisdiction of the Federal High Court in respect of the subject matter specified therein. On the other hand it removed from the State High Court, the hitherto concurrent jurisdiction in respect of the affected subject matters or actions: Egypt Air vs. Alh. Abdullahi (1997) 11 NWLR (pt.528) 179 at 187 – 188.

The appellant at page 5 of his brief cries out that the provisions of s 2(7)(1)(L) (3) and (5) of Decree No.60 of 1991 do not relate in any way to the appellant’s claim, as the word aviation matters, safety of aircraft or carriage of passenger or goods or issues arising from or ancillary to such facts are not contained in the statement of claim.

I think that such is a lame argument. This is because, as earlier stated, the alleged breach of the contract to convey the appellant from the Lagos airport to Benin as evidenced by the flight ticket and boarding pass issued comes under, carriage of passengers and goods by air, consequently all rights derivable there from must emanate from the court imbued with jurisdiction. Moreover, there are laws regulating the liability of carriers to its passengers, whether arising from delayed or denied boarding or interactions in the course of preparing for or the actual conduct of flight operations. It has been held that by reason of the provisions of S.315 of the 1999 Constitution, as amended, the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953, Vol. XL Laws of the Federation of Nigeria 1958, has domesticated the Warsaw Convention, 1929, and the Montreal Convention of 1999. This is by virtue of S.48 of the Civil Aviation Act 2006. The Apex Court went on to say that,
“It is a notorious fact that all air travelling tickets, whether domestic or international; contain notices alluding to the provisions of the Warsaw Convention, being referred to in this case as the 1953 Order. The 1953 Order can certainly be taken judicial notice of under Section 74(1) (a) of the Evidence Act, laws of the Federation of Nigeria”. Per Adekeye JSC: Harka Air Services (Nig) Limited v. Keazor Esq. (2011) LPELR-1353.
Flowing from the marriage of the Warsaw Convention into our domestic air space, through the instrumentality of S. 48 of the Civil Aviation Act 2006, the law now is;
“The law is that where domestic/common law right has been enacted into a statutory provision, it is to the statutory provision that resort must be had for such right, and not the domestic/common law. Hence an air passenger is not at liberty to choose as between the provisions of the convention and the domestic/common law, for claims for damages against the carrier. Such claims have to be asserted only in accordance with and subject to the terms and conditions of the convention and cannot be pursued under any other law”.
To the question whether the Learned trial Judge was right when he held that the appellants claim does not border on breach of contractual obligation, but relates to matters arising from Aviation and safety of Aircraft under S.251 (1) (k) of the 1999 Constitution, or pertaining to carriage of passengers and goods under S 2 of the Federal High Court (amendment) Decree no 60 of 1991, I answer in the affirmative.

This issue is resolved against the appellant.

Issue Two.
Whether the learned trial Judge was right when he held that the claim of the Plaintiff is not the major determinant factor for the jurisdiction of the court.

There is no dissent on this. Appellant contends that the trial court paid more attention to the averments of the respondent than the claim of the appellant to the effect that jurisdiction is dictated by the pleading on the statement of claim and not the averments in the statement of defence.

A sober consideration of the Lower Court’s ruling at pages 5 to 6 shows that the learned trial judge appreciated that fact, when he stated that:
“Hence the first consideration in its determination is the claim so endorsed on the writ of summons and statement of claim. Where the claim endorsed on the writ of summons, and statement of claim discloses a cause of action and the subject matter of the action is within jurisdiction and the plaintiff is competent to bring the action and the court is not otherwise disqualified, either in its membership or enabling statute to adjudicate, the court shall have and has jurisdiction to hear the action.”

From the above reasoning of the trial judge, it is wrong to say that the court did not properly access the fact of whether he has jurisdiction or not. I resolve this issue in favour of the respondent. Having resolved both issue one and two in favour of the respondent, I hold that the trial judge was right when he agreed with the respondent, that the appellant’s claim was not anchored on simple contractual relationship, but that founded on a contract for the carrying of passengers by air, and for which the State High Court lacks jurisdiction to entertain.

Consequently, this appeal lacks merit and it is hereby dismissed by me.

Costs of N50,000 is awarded to the respondent.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had the opportunity of reading, before now, the judgment just delivered by my learned brother, Barka, JCA. Having equally perused the briefs of argument of the learned counsel to the respective parties vis-a-vis the records of appeal, as a whole, I have no hesitation in concurring with the reasoning and conclusion reached in the said judgment, to the effect that the instant appeal lacks merits. Hence, the appeal is equally hereby dismissed by me for being unmeritorious. I abide by the consequential order of costs of N50,000.00 awarded in favour of the Respondent.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My learned brother, Hamma Akawu Barka, JCA, obliged me with a preview of the lead judgment he just delivered. I therefore had the opportunity of reading in advance the reasons articulated therein and his conclusion that the appeal lacks merit and ought to be dismissed.

I adopt the said reasons as mine and only wish to further add that the jurisdiction of the Federal High Court as set out in Section 251 (1) of the 1999 Constitution as amended, includes such other jurisdiction as may be conferred upon the Federal High Court by an Act of the National Assembly. The said Section stipulates:
“251 (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, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters – …” (Emphasis supplied)
The operative words for the purposes of the instant appeal are the words “in addition to”. It is a phrase which has been defined in Dictionary.com LLC online Dictionary as meaning: ‘the act or process of adding or uniting; the result of adding; something added.’ In effect, in addition to the items enumerated in Section 251 (1) (a) (s) of the Constitution, the Federal High Court also has exclusive jurisdiction in respect of any matter in which an Act of the National Assembly confers jurisdiction on it.
In this regard, the provisions of the Federal High Court (Amendment) Decree [Now Act] No. 60 of 1991 are relevant. Inter alia, it stipulates as follows in Section 2. (7) (1) (1), (3) and (5):
“2. (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 aircraft and carriage of passengers and goods by air and meteorology”
“(3) where jurisdiction is conferred upon the Court under sub-section (1) and (2) of this section, such jurisdiction shall be construed to include the jurisdiction to hear and determine all issues relating to, arising from or ancillary to any such subject matter.”
“(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.”
(Emphasis supplied)
By this stipulation, the National Assembly has conferred on the Federal High Court, the additional jurisdiction, to the exclusion of any other court, to try civil causes and matters “connected with or pertaining to carriage of passengers and goods by air”, and the said jurisdiction shall be construed to include the jurisdiction to hear and determine all issues relating to, arising from or ancillary to, for the purposes of this appeal, carriage of passengers and goods by air. By the provisions of Section 315 (4) (b) of the 1999 Constitution, the Federal High Court (Amendment) Decree [now Act] No. 60 of 1991 is an existing law which by Section 315 (1) (a) of the Constitution shall have effect and shall be deemed to be an Act of the National Assembly.

The Appellant’s case is that the Respondent breached the contract of carriage which he had with it, to be carried by air from Lagos to Benin. That instead of taking him to Benin, the Respondent took him to Warri. It seems as clear as crystal that the Appellant’s claim is in respect of carriage of passengers by air in respect of which exclusive jurisdiction has been vested in the Federal High Court by the Section 2 (7) (1) (1) of the Federal High Court (Amendment) Decree [now Act] No. 60 of 1991; a jurisdiction which is construed to include all issues relating to, arising from or ancillary thereto, by virtue of the provisions of Section 2 (7) (3) of the said Decree [now Act] No. 60 of 1991.

The Appellant instituted her action at the High Court of Edo State and upon a preliminary objection the lower court declined jurisdiction to entertain the action, hence this appeal. Having equally considered the Records of Appeal and the briefs of argument filed by the parties, I agree with the more detailed reasons contained in the lead judgment that this appeal lacks merit. Accordingly I also dismiss the appeal. The decision of the Lower Court in Suit No.B/440/2008 delivered on 19th May 2010 is hereby affirmed. I abide by the consequential orders made in the lead judgment.

Appearances

J. Jones Esq., with O. AmuwajoFor Appellant

AND

F. O. ObeimhenFor Respondent