AYODEJI ADELEKE AKINJOKUN v. LUFTHANSA GERMAN AIRLINES & ANOR
(2018)LCN/12295(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 18th day of December, 2018
CA/A/62/2014
RATIO
COURT AND PROCEDURE: WHERE STATUTE ARE REPEALED
“It is a cardinal principle of the law that statutes are not repealed by inference or implication but by direct provision of law. See RALEIGH INDUSTRIES LTD. V. NWAIWU (1994) 4 NWLR (PT. 341) 760 at 771. The Court will not imply a repeal unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time. See UWAIFO V. ATTORNEY GENERAL OF BENDEL STATE (1982) 7 SC 124 at 191; OLU OF WARRI V. KPEREGBEYI (1994) 4 NWLR (PT. 339) 416.” PER ADAMU JAURO, J.C.A.
INTERPRETATION: MEANING OF ‘INCOMPETENT BRIEF’ AND ‘DEFECTIVE BRIEF’
“It is pertinent for me here to draw a distinction between incompetent and defective briefs, an incompetent brief is one whose defect touches on the jurisdiction or power of Court to entertain the brief, while defective brief is one that is in breach of the rules of the appellate Court on brief writing, the brief is merely bad, faulty or inelegant. A defective brief as against an incompetent brief is properly before the Court but has a feature or features repugnant to qualities of a good brief, in other words, a defective brief is a bad brief.” PER ADAMU JAURO, J.C.A.
INTERNATIONAL LAW: WHETHER THE COURT WILL CONTINUE TO UPHOLD FOREIGN LAW
“In resolving this issue it is pertinent to note that Nigeria, like any other Commonwealth countries, inherited the English common law rules governing the municipal application of international law. The practice of our Courts on the subject matter is still in the process of being developed and the Courts will continue to apply the rules of international law provided they are found to be not overtaken by clear rules of our domestic law. Nigeria, as part of the international community, for the sake of political and economic stability, cannot afford to live in isolation. It shall continue to adhere to, respect and enforce both the multilateral and bilateral agreements where their provisions are not in conflict with our fundamental law, see IBIDAPO v. LUFTHANSA AIRLINES (1997) LPELR-1397 (SC).” PER ADAMU JAURO, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
AYODEJI ADELEKE AKINJOKUN Appellant(s)
AND
1. LUFTHANSA GERMAN AIRLINES
2. JOHN OKPARA Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment):
The appeal herein is against the ruling of the Federal High Court, Abuja Division delivered on 17th December, 2013 by Hon. Justice G. A. Kolawole in Suit No. FHC/ABJ/CS/67/2013.
The facts resulting in this appeal can be summarized as follows: The Appellant entered into a contract for international carriage with the 1st Respondent, an international airline Company engaged in the business of carriage by air. The Appellant was airlifted by the 1st defendants on the 24th May, 2005 from Abuja to Mexico City and to return on 23rd June, 2005. The Appellant was issued an electronic ticket for his return trip and his baggage checked in but however did not board the 1st Respondent’s flight at the time of departure on 23rd June, 2005. The Appellant was left stranded in Mexico city and in an attempt to return home he was arrested by the Immigration and customs officials of the United States and detained on arrival back to the country the Appellant instituted an action against the Respondents in the FCT High Court in 2008. In 2012 the FCT High Court declined jurisdiction in the matter pursuant to a preliminary objection based on Section 251(1) (k) of the 1999 Constitution (as amended) and same struck out on 25th January, 2012.
The Appellant commenced another suit on the same subject matter at the Federal High Court by a Writ of Summons dated 5th February, 2013. The Writ of Summons sought for the following reliefs against the Respondents, as defendants, namely:
i) An Order of the Court for negligence, breach of trust, breach of contract in the amount of one hundred thousand special drawing rights each year, from the date which the defendants failed to adhere to the responsibility being, the 2nd of June, 2005, till date and the year which judgment will be delivered.
ii) An Order of the Court Awarding in the sum of one hundred thousand special drawing rights, for deliberate harassment, bodily injury assault and battery, public disgrace. To be calculated in the national standard exchange,
iii) An Order of the Court for defendants to foot all medical bills that has been and will be incurred in reference to plaintiff’s health and injury.
iv) An Order of the Court for ten percentage monthly interests on judgment sum until the judgment is paid to the Plaintiff.
The 1st Respondent entered a conditional appearance and filed a Notice of Preliminary objection on the ground that the action was statute barred. The 1st Respondent in the preliminary objection contended that Article 29 of the Warsaw Convention limits the Appellants right of action to two years “from the date of arrival at destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped”.
It was argued that the Appellant commenced his action at the Federal High Court eight years after the accrual of his cause of action. The trial Court in a ruling delivered on 17th December, 2013 upheld the 1st Respondent’s preliminary objection and held that the Appellant’s action was statute barred and consequently dismissed the suit.
Aggrieved by the aforementioned decision, the Appellant challenged same by filing a notice of appeal dated 22nd December, 2015 which was predicated on four grounds of appeal. The original notice was subsequently amended by leave of Court granted on 28th June, 2016 and the amended notice of appeal still anchored upon four grounds of appeal was filed on 28th July, 2016. In compliance with the Rules of Court, parties filed and exchanged their respective briefs argument. The Appellant’s amended brief of argument settled by Ayodele Adeleke Akinjokun (i.e the Appellant himself) was filed on 28th July, 2016 though deemed properly filed on 26th April, 2017. The Appellant?s reply brief to 1st Respondents amended brief was filed on 24th April, 2017 though deemed properly filed on 26th April, 2017. The 1st Respondent’s amended brief settled by Lawrence Fubara Anga was filed on 3rd April 2017 though deemed properly filed on 26th April, 2017. The 1st Respondent at page 4 of its brief of argument incorporated a notice of preliminary objection to the competence of the Appellant’s appeal.
The Appellant adopted his brief and the reply brief in urging the Court to allow the appeal. Learned counsel for the 1st Respondent adopted the 1st Respondent’s Brief in urging the Court to dismiss the appeal.
The Appellant formulated four issues for determination from the four grounds of appeal in his amended notice of appeal. The issues submitted are contained on pages 3, 12, 25 and 30 of the Appellant’s amended brief of argument and are hereby reproduced, thus:
1) “Whether the learned Federal Judge abandoned its duty in law by refusing to look at all the evidence in the record including the amendment filed specifically the attached documents issued by the United States Government evidencing the detention of the Appellant EXH (A) through EXH (G)”.
2) Whether the learned trial judge selectively erred by deliberately refusing to allude to the statute which compelled the Court to take cognizance of the filing date of the suit at the time filed at the FCT High Court, deliberately the Court having been raised in argument ignored provisions of the Subsection (3)(4)(5) of Section 22 of the Federal High Court Act, in line with Order 32 of the FCT High Court Rules viz-a-vis Section 2 of the FCT High Court Civil Procedure Rules Act when canvassed.
3) The learned trial judge erred by deliberately refusing to allude to the provisos of the Warsaw Pact it held as the appropriate law which compelled the Court to assume jurisdiction and deny the carrier power to take advantage of the provisos of the convention as far as the limits awardable or the time action can be brought against the carrier stating the law of our Coutts will take preeminence, especially where willful misconduct if present. So also denying probative value to the dates and documents in evidence on record.
4) Whether Court erred when it ignored all Evidences before him and transferred his duty to the Court of Appeal”.
Learned counsel for the Respondent on the other hand distilled two issues for the determination. The said two issues are adumbrated as follows;
1) Whether the lower Court was right to have considered the Respondent’s preliminary objection before considering the main suit (Ground 1 & 3).
2) Whether a suit which has been struck out for lack of jurisdiction can perpetually continue in existence (Ground 2).
After a careful perusal of the Appellant’s amended grounds of appeal filed, and in order to narrow down the issues in controversy between the parties in the interest of accuracy, clarity and brevity, the following lone issue is formulated for the determination of this appeal thus;
Whether having regards to the evidence in the record, the trial Court erred when it upheld the defendants/Respondents’ notice of preliminary objection dated 11/3/2013?
I have earlier in this judgment said that the 1st Respondent counsel incorporated a notice of preliminary objection in the 1st Respondent’s brief of argument. Therefore, this Court will commence its deliberation with the consideration of the 1st Respondent’s preliminary objection.
PRELIMINARY OBJECTION
The 1st Respondent counsel in the 1st Respondent’s amended brief of argument raised a preliminary objection to the competence of the Appellant’s brief on the ground that the amended Appellant’s brief is incoherent, lacking in order, vague and verbose.
Learned counsel for the 1st Respondent argued that some issues for determination in the Appellant’s brief of argument are not related to the grounds of appeal. He maintained that the Appellant’s issues outnumbered his grounds of appeal and that the Appellant’s 4th ground of appeal is vague and not related to the ruling of the trial Court appealed against. He referred the Court to Order 7 Rule 3 of the Court of Appeal Rules 2016 and the cases of; ONUEGBU & ORS VS. A.G IMO STATE & ORS (2012) LPELR – 19691; ANAKWE VS. OLADEJI (2008) ALL FWLR (PT.399) PG. 571; ADEHI VS. ATEGA & ORS (1995) 5 NWLR (PT.398) PG. 656; IDIKA vs. UZOUKWU (2008) 9 NWLR (PT.1091) 34 AT 58; IDEHENRE VS. OMIYI (2010) LPELR-9093; OLORUNTOBA-OJU & ORS VS. ABDULRAHEEM & ORS (2009) 13 NWLR (PT.1157) 83 at 121.
He urged the Court to strike out the Appellant’s brief for being incompetent and determine this appeal solely based on the 1st Respondent’s brief of argument.
In response to the 1st Respondent’s preliminary objection, the Appellant argued that the effect of preliminary objection which does not challenge the competence of the hearing of an appeal, but some issues and grounds upon which such appeal is brought as in the instant appeal is a failure.
He maintained that the 1st Respondent’s preliminary objection flirts with issues relating to a ground of appeal upon which the Appellant’s argument is premised. Therefore, the 1st Respondent ought to come by way of motion on notice, not by way of preliminary objection. He referred the Court to the cases of; ASIKPO & ANOR VS GEORGE & ANOR (2013) LPELR- 22031, NNPC VS. FAMFA OIL LTD (2O12) 5-7 MJSC 1 AT 29; GUTING VS. DAVWANG (2013) LPELR-21921.
PLATEAU STATE GOVT VS. CREST HOTEL & GARDEN (2012) LPELR-9794.
Learned Appellant’s counsel contended that the Appellant’s four issues formulated from the 4 grounds of appeal were distilled in line with the law and relevant rules of the Court. He referred the Court to the cases of JIBRIN VS NEPA (2003) LPELR – 7267; ELUKPO VS. IBRAHIM & ANOR (2013) LPELR-20235.
He urged the Court to discountenance the preliminary objection, dismiss same with cost of N50, 000.00 and hear the Appellant’s appeal on the merits.
Before going into the merit of the preliminary objection, let me quickly start by saying that, learned counsel for the 1st Respondent on page 4 paragraph 11 of the 1st Respondent’s amended brief of argument contended that the Appellant distilled five issues from his four grounds of appeal. However, he failed to show in his argument how he arrived at that conclusion. This Court cannot speculate, but will rather act on what is contained in the record.
The sole purpose of a brief of argument is to present a summary of a party’s case on appeal in an accurate and lucid form. It is expected to present the party’s case in a succinct and clear form. A good brief of argument is a succinct statement of the Appellant’s or Respondent’s argument in an appeal. See PHILIP OBIORA vs. PAUL OSELE (1989) 1 NWLR PT. 97 279.
In the instant appeal, the 1st Respondent’s counsel contention in their preliminary objection is that the amended Appellant’s brief is incoherent, lacking in order, vague, verbose and defective.
It is pertinent for me here to draw a distinction between incompetent and defective briefs, an incompetent brief is one whose defect touches on the jurisdiction or power of Court to entertain the brief, while defective brief is one that is in breach of the rules of the appellate Court on brief writing, the brief is merely bad, faulty or inelegant. A defective brief as against an incompetent brief is properly before the Court but has a feature or features repugnant to qualities of a good brief, in other words, a defective brief is a bad brief.
In OBIORA vs. OSELE (1989) 1 NWLR (PT.97)279 the Supreme Court per Oputa, JSC, aptly stated thus:
“A bad, faulty and/or in elegant brief will surely attract adverse comment from the Courts but it will be stretching the matter too far to regard such defective brief as no brief.”
Also in AWUSE vs. NIGERIAN ARMY (2015) NSCQLR VOL. 74 (PT. 1) the Supreme Court per A.A. Augie JSC at pages 300- 301 stated thus;
“A faulty brief is a brief which is faulty, one cannot close one’s eyes to the fact of its existence.”
In the instant appeal, it is evidently clear to me that the Appellant’s brief of argument is bad and faulty. Hence, the 1st Respondent’s counsel urged the Court to determine this appeal solely on the 1st Respondent brief of argument. It is trite law that the filing of the Appellant’s brief no matter how faulty it is does indicate a willingness and readiness on the part of the Appellant to prosecute his appeal. Therefore, this Court cannot close its eyes to the fact of its existence. See Nwaoha vs C.O.P (2018) 10 NWLR (part 1628) 568, Ekpemupolo Vs Edremoda (2009) 8 NWLR (part 1142) 166.
Furthermore, as rightly argued by the Appellant, a preliminary objection is only filed against the hearing of an appeal and not against one or more grounds of appeal. An objection which does not challenge the competence of an appeal but only one or some grounds or issues raised in the appeal, does not challenge the hearing of the appeal as provided by the provisions of the rules of this Court. See the case of GUTING VS. DAVWANG (2013) LPELR-21921 CA.
In the instant appeal the preliminary objection was filed against the competence of the Appellant’s brief of argument, this in my view was a wrong use of preliminary objection. The 1st Respondent ought to have filed a motion on notice since the preliminary objection if successful would not have terminated the hearing of the appeal. Alternatively, highlighting the state of the brief of argument at the hearing of the appeal would have been enough.
In view of all the above, the 1st Respondent’s preliminary objection is inappropriate and is accordingly struck out for being incompetent. There shall be no order as to cost.
Now to the main appeal.
ISSUE FOR DETERMINATION
Whether having regards to the evidence in the record the trial Court erred when it upheld the defendants’/Respondents’ Notice of Preliminary objection dated 11/3/2013?
The Appellant contended that the trial Court refused to look and consider the appellant’s processes filed on 18th day of April, 2013, which sought the leave of the Court to amend his statement of claim, and further drew the attention of the trial Court to the amendment, as vital to the life wire of the suit.
He argued that in his supporting affidavit obviate the need for the trial Court to grant the amendment premised on the question that errors were on the statement of claim and the writ in its entirety were fraught with errors.
He referred the Court to the Appellant’s motion filed at the trial Court on 18th April, 2013 at page 218 of the record and the cases of;ALH. NUHU VS. ALH. OGELE (2003) 12 SCJN 158; AKINKUOWO VS. FAFIMOJU (1965) NMLR 349; ENGLAND VS. PALMER (1955) 14 WACA 659; AWOROKIN & ORS vs. ADENIRAN (2010) LPELR-8595; MOBIL PROD. NIG. UNLTD VS. MONOKPO (2003) 18 NWLR PT.852 346.
The Appellant further stated that at the lower Court he drew the attention of the trial Court to the suffering encountered by him as highlighted in the proposed amendment, particularly in Paragraph 2 of the supporting affidavit, but the trial Court circumvented the argument, He referred the Court to page 239 of the record and the cases of LAGGA VS SARHUNA (2008) 16 NWLR (PT.1114) PG 427; ONYEKWELU VS. ELF PET. NIG. LTD (2009) 5 NWLR (PT.1133) PG 181; OSUJI vs. EKEOCHA (SUPRA).
He submitted that it is the duty of the Court to consider all the defences raised by evidence in the record, regardless of whether the defences are weak or stupid. He argued that a careful review of the writ of summons could show the mistakes evident on the Appellant’s processes. He cited in support the cases of ADA VS. STATE (2008) 13 NWLR (PT.1103) 149; URHOBO VS. OTERI (1999) 2 NWLR (PT. 589) PG 147.
It was submitted that a litigant will not be punished for errors of the trial Court, and also when exercising its adjudicatory function to correct errors of trial Court, an appellate Court cannot be accused of substituting its views for those of the trial Court. He referred the Court to the case of C.C LTD vs. ALTIMATE INV. LTD (2004) 2 NWLR (PT. 857) PG 274.
It was contended that the trial Court violated its duty and erred when it failed to call the Appellant to address his issue two of the written address (i.e whether the stipulations of the treaty applicable the defendant are in cognizance of) which the Court said it hardly understands what it was meant to argue. He referred the Court to the case of COLE VS. MARTINS (1968) ALL NLR 161.
He argued that the Montreal convention has abrogated the Warsaw convention, and incorporated into the laws of Nigeria under the Civil Aviation Act 2006. He referred the Court to Section 77 of the Civil Aviation Act 2006.
He insisted that the preliminary objection of the defendants/Respondents was brought in line with Warsaw convention which was repealed by the Montreal convention. It was his submission that the trial Court claimed it doesn’t understand the argument and erroneously proceeded to make arguments for the Respondent. He referred the Court to the cases SHUAIBU AFOLABI SALISU VS. JELILI KAYODE AMUSAN & ORS (2010) LPELR-9103 CA; KODE vs. YUSSUF (2001) 4 NWLR (PT. 703) PG 392; AKINKUOWO VS. FAFIMOJU (1965) NMLR 349.
Learned counsel contended that the ruling of the trial Court was perverse and does not represent the justice of the case before it. He referred the Court to the cases of EKWEALOR VS. OBASI (1990) 2 NWLR PT.131 PG 231; OLUFOSOYE VS. OLORUNFEMI (1989) 1 NWLR PT 95 PG 26 AT 40.
He insisted that the trial Court failed in its duty when it refused to allow the Appellant to address his issue two which was not clear to it. He cited in support the case of COLE VS. MARTINS (1968) ALL NLR 161.
The appellant further referred the Court to Section 122 of the Evidence Act and Section 22 of the Federal High Court Act to contend that the trial Court erred when it held that there is no nexus between the matter commenced at the High Court of the FCT and the Federal High Court, and went ahead to terminate the Appellant’s case instead of applying the provision of Section 22 of the Federal High Court Act. He cited in support the cases of ASSOCIATED DISCOUNT VS. AMALGAMETED TRUSTEES NO. 2 (2007) 7 SC 158; UDO VS. THE REGISTERED TRUSTEES OF THE BROTHERHOOD OF THE CROSS & STAR (2013) LPELR 1991; FASAKIN FOODS NIG. LTD VS. SHOSANYA (2006) 10 NWLR (PT. 987) 126.
He argued that by the provision of Section 22 of the Federal High Court Act, once an action has been commenced in a Court in respect of a case in which the Federal High Court has exclusive jurisdiction, whether stayed or struck out on consideration of limitation of action, the Federal High Court is mandated to consider the date the matter was commenced in the former Court. He referred the Court to Order 32 of the FCT High Court Rules, and the case of ASSOCIATED DISCOUNT VS. AMALGAMATED TRUSTEE NO. 2 (SUPRA) AT 183-184.
He maintained that the trial Court’s interpretation of Section 22 of the Federal High Court Act violated the rules of interpretation required.
The appellant contended that it is a miscalculation for the trial Court to commence the application of Article 35 (1) of Montreal Convention or Warsaw Convention from 2005 when the Appellant was in detention in the U.S after he had been detained by Mexican Government for overstay. He maintained that proper calculation will only commence in 2008, when the applicant indicated at paragraph 11 (a) 5 line 265 of the proposed amendment of claim the time he was released from custody. He referred the Court to the cases of OLAOSEBIKAN VS. WILLIAMS (1996) 5 NWLR (PT.449) PG 437; TANGALE TRADITIONAL COUNCIL VS. FAWU (2001) 17 NWLR (PT.742) PG 293; MOHAMMED VS. ABDULKADIR (2007) 4 WRN 104.
He submitted that by Article 29 of Warsaw and 35 of Montreal conventions, the counting of time can only commence in summer 2008.
He referred the Court to the case of MC VS. NEPA (1992) NWLR (PT.246) PG. 132.
Learned counsel insisted that the trial Court erred by deliberately refusing to allude to the provisions of the Warsaw convention which compelled the Court to assume jurisdiction and deny the carrier power to take advantage of the provisions of the convention as far as the limits awardable or the time action can be brought against the carrier, especially where willful misconduct is present as in the instant case. He referred the Court to Article 25 Warsaw Convention and the cases of HARKA AIR SERVICES NIG. LTD vs. KEAZOR ESQ (2011) LPELR-1353 SC; JIBRIN BALA GUNA ALHASSAN VS. DR. MUAZU BABANGIDA ALIYU (2009) LPELR 8340 CA.
Learned counsel further contended that the trial Court erred in transferring its duties to this Court having fully well and been familiar with the issues before it. He referred the Court to the case of OBI vs INEC (SUPRA).
He finally urged the Court to grant the Appellant’s proposed amendment and enter judgment in his favour.
Learned counsel for the 1st Respondent on the other hand submitted that a perusal of Order 29 Rule 4 of the FHC Rules shows that the relevant time for determination of the application challenging the jurisdiction of the Court is not when the process was filed but the time when the defendant was served.
He argued that a careful scrutiny of the writ of summons filed by the Appellant at the lower Court shows that it was filed on 5/2/2013 and served on the 1st Respondent on 18/2/2014. The Respondent then filed a notice of preliminary objection on 11/3/2014 within 21 days stipulated by the FHC Rules. Therefore, the trial Court was right to have determined the objection before hearing the Appellant’s application at the trial Court in line with Order 29 Rule 1 of the FCT Rules.
Learned counsel maintained that assuming without conceding that the 1st Respondent?s preliminary objection was filed out of time, the lower Court was constrained to align itself with the principle that the issue of jurisdiction can be raised at any stage of the proceedings and that once raised, the Court must determine it before taking further steps in the suit. He referred the Court to the cases of GEORGE VS. FRN (2011) 7 NWLR (PT.1254) AT 60; A.G RIVERS STATE vs. A.G AKWA IBOM STATE (2011) 8 NWLR (PT 1248) AT 165.
He argued further that in determining its jurisdiction the trial Court did not need to make reference to all the evidence on record. The jurisdiction of the Court is determined by reference to the claim of the plaintiff properly before it. He cited in support the case of MBANG VS. OFFIONG (2012) LPELR – 19723 CA.
On the Appellant’s contention that the trial Court ought to have revived the suit that was struck out by the FCT High Court on 25/1/2012, and deemed the matter as having commenced at the Federal High Court on 4/3/2011. Learned counsel for the 1st Respondent submitted that the Appellant’s contentions on this point are alien to Nigerian jurisprudence.
He maintained that once a matter is struck out under these circumstances, its life cannot be revived by re-instituting the matter in another Court. He referred the Court to the cases of MBANG Vs. OFFIONG (SUPRA); OBI vs. INEC (2007) 11 NWLR (PT. 1046) PG 560.
Furthermore, contrary to the Appellant’s contention Section 22 of the FHC Act does not grant a suit which has been struck out for want of jurisdiction a retroactive status. It rather deals with the power of the Federal High Court to transfer a suit to a High Court where it is discovered that the Federal High Court lacks jurisdiction; where such suit is wrongly brought before it. He referred the Court to Section 27 sub (1) & (2) of the Federal High Court Act, Section 254 of the CFRN 1999 as amended.
Learned counsel submitted that the FCT High Court Rules does not confer similar powers of the FCT High Courts to transfer cases to Federal High Court where it lacks jurisdiction to entertain the suit. Therefore, Section 22 (3) of the Federal High Court Act which seeks to direct the High Courts to transfer a suit to the Federal High Court where it discovers that it lacks jurisdiction is unconstitutional. Because by virtue of Section 259 of the Constitution, the powers to make rules for regulating the practice and procedure of the FCT High Court is vested in the Chief Judge of the FCT High Court alone, and the FHC Act cannot override the constitutional powers and so in accordance with the S. 1 (3) of the Constitution, Section 22 (3) of the FHC Act must remain void to the extent of its inconsistency with the provisions of Sections 254 and 259 of the CFRN 1999.
He referred the Court to the cases of CAMPAGNIE GENERALE DE GEOPHYSIQUE NIG. LTD Vs. ANIDI (2005) LPELR-11346; BELIEVERS FISHERIES DREDGNG & ANOR VS. U.T.B TRUSTEES LIMITED (2010) LPELR – 3864.
Learned counsel submitted that the trial Court having settled that the FCT High Court gave proper order when it struck out the Suit, the provision of Section 22 of the FHC Act does not sustain the life of the suit after it has been struck out by the FCT High Court.
He urged the Court to dismiss the appeal with substantial costs.
In his reply brief the Appellant contended that the position of the law vis a vis Order 29 (1) & (4) is clear that an objection can be taken at any time, and where there are two motions one seeking to terminate a case and the other seeking to keep it alive, the later must be taken first. He cited in support the case of ABUBAKAR ORS VS. NASAMU (2011) LPELR- 1831 SC.
He contended that the trial Court erred in refusing to follow the law refusing the Appellant to move his motion first.
On the 1st Respondent’s contention that the proper procedure is for the Appellant to file an appeal against the decision of the FCT High Court at the time the suit was struck out. The Appellant submitted that, it has been held that unnecessary appeals that are dilatory in nature are done to the irritation of the Court. Therefore, the proper procedure is for the parties to appeal at the time a final decision has been taken. He cited in support AMADI VS. NNPC (2000) 6 SC (PT.1) PG. 66 AT 82; (2000) 10 NWLR (PT.674) Pg.76.
In resolving this issue it is pertinent to note that Nigeria, like any other Commonwealth countries, inherited the English common law rules governing the municipal application of international law. The practice of our Courts on the subject matter is still in the process of being developed and the Courts will continue to apply the rules of international law provided they are found to be not overtaken by clear rules of our domestic law. Nigeria, as part of the international community, for the sake of political and economic stability, cannot afford to live in isolation. It shall continue to adhere to, respect and enforce both the multilateral and bilateral agreements where their provisions are not in conflict with our fundamental law, see IBIDAPO v. LUFTHANSA AIRLINES (1997) LPELR-1397 (SC).
In the instant case the Respondent’s objection at the trial Court was predicated on four grounds as can be seen at page 219 of the printed record. The appellant/plaintiff in his response to the preliminary objection contended that the Warsaw convention was not applicable law but Montreal convention of 1999. He argued that the Montreal convention repealed the Warsaw convention. The trial Court in its judgment at pages 225 of the record of appeal held thus;
“My little understanding of the working of international laws and treaties, is that these international conventions and treaties, hardly ever repeal an existing ones, they rather build on the events and incidents for which they were made as they are subsequently captured by developments recorded in other human endeavors brought about by advancement made in discovery by science and technology and or other mischief they were originally made to address.”
In AWAWU OLULU OTOAKHIA VS AERO CONTRACTOR NIGERIA LIMITED 2014 LPELR-23319 CA this Court per Barka JCA held thus;
“Moreover, there are laws regulating the liability of carriers to its passengers whether arising from delayed or denied boarding 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 1953 has domesticated the Warsaw convention, 1929, and the Montreal Convention of 1999. This is by virtue of S.48 of the Civil Aviation Act. See ?Harka Air Services (Nig) Ltd Vs. Keazor Esq (2011) LPELR- 1353 Flowing from the marriage of the Warsaw Convention into our domestic air space, through OTOAKHIA V. AERO CONTRACTOR NIGERIA LTD the instrumentality of S. 48 of the Civil Aviation Act 2006, the law now is;
“The law is that where domestic/common law right as 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.”
It is a cardinal principle of the law that statutes are not repealed by inference or implication but by direct provision of law. See RALEIGH INDUSTRIES LTD. V. NWAIWU (1994) 4 NWLR (PT. 341) 760 at 771. The Court will not imply a repeal unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time. See UWAIFO V. ATTORNEY GENERAL OF BENDEL STATE (1982) 7 SC 124 at 191; OLU OF WARRI V. KPEREGBEYI (1994) 4 NWLR (PT. 339) 416.
In the instant case, it is my view that the appellant’s contention at the trial Court that the Warsaw convention was not the applicable law but Montreal convention of 1999 is grossly misconceived.
The Supreme Court in IBIDAPO V. LUFTHANSA AIRLINES (1997) LPELR-1397(SC) Per ABUBAKAR BASHIR WALI, JSC held thus;
“I have not been able to find any legislation that repealed the 1953 Order or any Court decision that has declared it illegal, irrelevant or obsolete. An important international convention like the Warsaw Convention cannot be said to be impliedly repealed when this country is still taking advantage of its provisions and has not promulgated similar enactment to replace it. The Convention is so important to this country both domestically and internationally to be avoided. A vacuum of such magnitude cannot be tolerated in our legal system. It is a notorious fact that all Air travelling tickets, whether domestic or international contain notices alluding to the provision 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 (Cap 112) Laws of the Federation of Nigeria, 1990.”
The apex Court Per ANTHONY IKECHUKWU IGUH, J.S.C. went further and held thus;
The conclusion I finally reach is that the imperial order in council known as the carriage by Air (colonies, Protectorates and Trust Territories) Order, 1953, otherwise referred to as the 1953 order, which laid down the rules of the Warsaw Convention regulating international Carriage by Air applicable to Nigeria did not cease to operate as an existing law on the coming into effect on the 1st October, 1960 of the Nigeria (Constitution) order-in-Council 1960. The present action, having been filed more than two years when the cause of action arose, in contravention of Article 29 of the Warsaw Convention which formed the first schedule to the 1953 Order, is therefore statute-barred. In my view, the suit was rightly declared to be statute barred by both the trial Court and the Court below. It was also properly dismissed.”
Article 25 and 29 of the Warsaw Convention which the respondent contended was the applicable law limits the right of action to two years from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. See also Article 35 of the Second Schedule to the Civil Aviation Act Cap C13 2004. When this provision vis a vis the plaintiff?s cause of action as depicted in his writ of summons and statement of claim, it can be seen that the appellant?s cause of action had accrued from the date in which the carriage stopped. The right of action accrues when the person that sues becomes aware of the wrong done to him.
See SIFAX NIG. LTD VS MIGFO NIG LTD (2018) 9 NWLR (PT.1623) PG. 138 AT 178.
In this case the appellant contended that the respondents failed to adhere to their responsibility since 23rd June, 2005. See paragraph 1 of the plaintiff’s statement of claim at page 6 of the printed record.
The position of the law, with regards to computation of time in respect of actions commenced in the wrong court, is to the effect that time spent in the wrong Court ought not to be counted, because time was suspended and frozen during the pendency of the case in the wrong Court. See SIFAX NIG. LTD vs. MIGFO NIG. LTD (2018) 9 NWLR (Pt.1623) 138 AT 185. In the instant case, the years it took the case in the FCT High Court, which lacked jurisdiction cannot be computed for the purposes of limitation of time. Hence computation of time is suspended and frozen from 2008 to 2012. Consequent upon the foregoing, from 23rd June, 2005 when the cause of action accrued, to 2008 when the action was filed in the FCT High Court, the two years period had expired. Hence the action is still caught up by the two years limitation.
The appellant’s contention that the trial Court erred when it went ahead to terminate the Appellant’s case instead of applying the Provision of Section 22 of the Federal High Court Act is grossly misconceived. A High Court cannot transfer a matter before it to Federal High Court where it finds that it lacks jurisdiction. See TUKUR VS. GOVT OF GONGOLA (1989) 4 NWLR (PT. 117) PG 517.
Where a Court lacks jurisdiction as in the instant case, it is unnecessary to consider other issues. See FCDA VS. SULE (1994) 3 SCNJ 71.
In view of all I have said above. The sole issue in this appeal is resolved in the negative and in favour of the respondent.
There is no merit in this appeal and it is hereby dismissed, the ruling of the trial delivered on 17/12/2013 by Hon. Justice G.O. Kolawole in suit No. FHC/ABJ/CS/67/2013 is hereby affirmed. There shall be no order as to costs.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft the judgment just delivered by my learned brother, ADAMU JAURO, JCA. I am in full agreement with the reasoning and conclusion and orders reached by my learned brother.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, Lord Justice Adamu Jauro, JCA. I agree with the reasoning, conclusions and orders therein.
Appearances:
Ayodeji Adeleke AkinjokunFor Appellant(s)
Ikechukwu Obioma, Esq.For Respondent(s)
