FEDERAL AIRPORTS AUTHORITY OF NIGERIA & ANOR v. AUTOPORT NIGERIA LIMITED & ORS
(2018)LCN/12200(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of November, 2018
CA/L/880/2010
RATIO
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“There is no gainsaying the fact that the right to fair hearing is fundamental, having been enshrined in and guaranteed by Section 36 of the 1999 Constitution of the Federal Republic of Nigeria. Hence, once the issue of fair hearing is raised on appeal, it must be taken with seriousness and where it is found that the lower Court breached the right to fair hearing, such a decision would be rendered a nullity. A fundamental aspect of fair hearing, is the principle to the effect that both parties must be given every opportunity to be heard and where they make their case, the Court must accord due consideration to same. This is the practical effect of the latin maxim ‘audi alteram partem’. The Apex Court in the case of DINGYADI V. INEC (2010) LPELR-952(SC) (Pp. 167-168, paras G – D) Per O. O. Adekeye, JSC” PER JAMILU YAMMAMA TUKUR, J.C.A.
JURISDICTION: CONDITIONS FOR A COURT TO MEET JURISDICTION
“In the celebrated case of Madukolu v. Nkemdilim (1962) All NLR 581, the Apex Court laid down specific conditions that must be met before a Court can properly assume jurisdiction over a case. They are: (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: OSI v. ACCORD PARTY & ORS(2016) LPELR-41388(SC) (P. 15, Paras. B-E); GOVERNING COUNCIL OF NTI, KADUNA & ANOR v. NASU(2018) LPELR-44557(CA); and NDIC v. MOHAMMED & ORS(2018) LPELR-44744(CA).” PER JAMILU YAMMAMA TUKUR, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. FEDERAL AIRPORTS AUTHORITY OF NIGERIA
2. MAEVIS LIMITED – Appellant(s)
AND
1. AUTOPORT NIGERIA LIMITED
2. HONEST RICHIE MOTORS & CO. LTD
3. TEJ BIM MOTORS LIMITED
4. RITAMOS INTERNATIONAL LIMITED
5. ALFA YANKEE MOTORS LIMITED
6. SAN G. MOTORS LIMITED
7. KRYZTALS AUTOS LIMITED – Respondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling of the Federal High Court Lagos Division, in SUIT NO: FHC/L/CS/01/2010 delivered by Honourable Justice Lambo Akanbi on the 22nd day of February, 2010,wherein the Court ruled in favour of the Respondents.
The material facts leading to this appeal, are that the Respondents being Tenants of the 1st Appellant, instituted an action in the lower Court vide a Writ of Summons dated 4th January, 2010, asking the Court to protect their right to quiet enjoyment of the rented properties. The Respondents filed all requisite processes and filed an application dated 4th January, 2010, via which they prayed for the following:
1. An Order of Interlocutory Injunction restraining the Defendants by themselves, their principal or agents, servants and/or privies from further sealing off, locking, ejecting by use of force or taking over by use of force the offices of the Plaintiffs at Km 19, Agege Motor Road, Ikeja, Lagos State pending the determination of this suit.
2. Such order or other orders as this Honourable Court may deem fit to make in the circumstance.
The Appellants duly filed a Statement of Defence, and other requisite processes. Appellants also filed a Notice of Preliminary Objection dated 26th January, 2010, challenging the jurisdiction of the lower Court on the grounds that the Respondents failed to file a pre-action notice and that the 1st Appellant enjoys statutory protection from prosecution.
The applications of both parties were heard together and, in a ruling, dated 22nd February, 2010, the trial Court held that in the circumstances of the case at trial, the service of a pre-action notice was not mandatory, dismissed the Preliminary Objection and granted the Respondent’s application as prayed.
Dissatisfied with the above, the Appellants appealed to this Court vide a Notice of Appeal dated 23rd February, 2010 and filed on 5th March, 2010, with 7 grounds of appeal.
The Appellants’ Brief of Argument settled by Uche I. Obi, Esq., of Akomolafe, Owasanoye & Co., is dated and filed on 20th January, 2011. Appellants’ counsel formulated two issues for determination to wit:
1. Whether the failure of the Respondents to serve the Appellants with pre-action notice as well as the institution of this suit under three months of the cause of action is not fatal to the Respondent’s suit against the Appellants.(Grounds1 & 2)
2.Whether the Appellants’ right to fair hearing was not denied in granting the Respondents’ motion for interlocutory injunction. (Ground 4)
On the other hand, the Respondents’ Brief of Argument settled by Oluwole Olawale Ajayi Esq., of Wole Ajayi & Co., is dated 9th June, 2011, and filed on 10th June, 2018, but deemed properly filed on 20th October, 2016.
Respondents’ counsel formulated a sole issue for determination to wit:
Whether the learned Judge made a correct approach to the facts and circumstances of the case presented to it by the Respondents.
An examination of the issues raised by both parties reveals that they are substantially the same, with Respondents’ issue subsumed in the issues of the Appellants. I therefore adopt the Appellants’ issues for the purpose of convenience in determining this appeal.
ISSUE ONE:
WHETHER THE FAILURE OF THE RESPONDENTS TO SERVE THE APPELLANTS WITH PRE-ACTION NOTICE AS WELL AS THE INSTITUTION OF THIS SUIT UNDER THREE MONTHS OF THE CAUSE OF ACTION IS NOT FATAL TO THE RESPONDENT?S SUIT AGAINST THE APPELLANTS. (GROUNDS 1 & 2).
Learned counsel for the Appellants argued that issuance of a pre-action notice on the 1st Appellant is mandatory, being the requirement of the express provision of the 1st Appellant?s establishment Act and failure to issue same is fatal to the Respondents? suit. He also argued that commencing the suit at trial without allowing three months to expire is fatal to the Respondents? case.
He relied on Section 20(2) of the Federal Airports Authority of Nigeria Act; Nnonye v. Anyichie (2005) 2 FWLR (Pt.268) 1213; and Mika?llu v. State (2001) 8 NWLR (Pt.715) 469 at 489 Ratio 19.
Learned counsel argued that the trial Court misapplied the decision in ITC Plc v. NAFDAC (2007) 10 NWLR (Pt.1043) 613 at 619, as the part of the decision relied on was an obiter, with the main holding of the Court being to the effect that the requirement for statutory pre-action notice covers all suits of whatever nature, type or causes. He further argued that in that case, the Court of Appeal dismissed the appeal and upheld the decision of the trial Court striking out the Plaintiff’s suit for failure to serve pre-action notice.
Counsel submitted that assuming the principle relied on by the learned trial Judge to the effect that where the action is based on fear of impending damage that would cause irreparable mischief, then the requirement of pre-action notice would not apply, was correct, the damages in the suit at trial which is the sealing of the premises were not impending as it had already occurred; and the sealing of the premises was not an irreparable mischief.
On the other hand, learned counsel for the Respondents argued that the trial Court rightly relied on the decision inITC Plc v. NAFDAC (2007) 10 NWLR Pt.1043 P.613, as the issue before this Court in that case was whether or not it is mandatory in all cases that a Plaintiff must issue and/or serve a pre-action notice before commencing his suit and that it was clearly stated in the case that the Plaintiff whose principal object is not damages, but acts under a genuine fear for impending damage and the object of the suit is to prevent irreparable mischief from being done, the Respondents need not comply with the statutory provision requiring pre-action notice.
Counsel also argued that the determination of what amounts to genuine fear of impending damage is the prerogative of the lower Court, and that the damage which was the issue at the lower Court was the serving of notice to seal and the actual sealing of the premises on the same day, an act which was unjust, and the Respondents could not be expected to file a pre-action notice in such circumstances.
RESOLUTION
It is settled principle of law that a Court cannot exercise its authority or properly adjudicate over a matter except it has jurisdiction over it. In the celebrated case of Madukolu v. Nkemdilim (1962) All NLR 581, the Apex Court laid down specific conditions that must be met before a Court can properly assume jurisdiction over a case. They are:
(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: OSI v. ACCORD PARTY & ORS(2016) LPELR-41388(SC) (P. 15, Paras. B-E); GOVERNING COUNCIL OF NTI, KADUNA & ANOR v. NASU(2018) LPELR-44557(CA); and NDIC v. MOHAMMED & ORS(2018) LPELR-44744(CA).
It is also a settled principle of law that where a statute or contract stipulates the issuance and service of a pre-action notice, that stipulation generally constitutes a condition precedent to the assumption of jurisdiction by a Court of law, with the effect that failure to serve such pre-action notice constitutes an impediment to the full assumption of jurisdiction by the Court, especially where the issue is timeously raised by the party who ought to receive the notice.
The Apex Court in the case of YAKI & ANOR v. BAGUDU & ORS (2015) LPELR-25721 (SC) (P. 8, Paras. D-E) Per NGWUTA, J.S.C. stated thus:-
”A pre-action notice has been held to be a condition for the exercise of the right to bring the action and not as abridgement of that right. See Anambra State Government & Ors v. Marcel & Ors (1996) 9 NWLR (Pt.213) 115.”
See: UGWUANYI v. NICON INSURANCE PLC(2013) LPELR-20092(SC); ADEYEMO & ORS v. ABEFE & ORS(2018) LPELR-44855 (CA); and UGHELLI SOUTH LOCAL GOVT COUNCIL v. EDOJAKWA (2018) LPELR-43927(CA).
The trial Court and the Respondents have placed heavy reliance on the case of International Tobacco Company Plc v. NAFDAC (2007) 10 NWLR Pt.1043 P.613, for the proposition that where the action is to forestall irreparable damage to the res, the requirement for pre-action notice may be jettisoned. I have carefully gone through the facts and holding of this Court in that case. The principle which was espoused in the case was that there can exists exceptional situations wherein the mandatory requirements of a pre-action notice provided by statute may be jettisoned, and one of such situations is where there is reasonable fear of destruction or loss of the res, that is the preservation of the res is at stake.
I agree with counsel for the Appellants that the danger involved in this appeal does not fall within the parameters of what would constitute an exception to the pre-action notice required to be served on the 1st Appellant.
The implication of the above is that the decision of the trial Court is erroneous. This Court is reluctant to interfere with the exercise of discretion by a trial Court, but is empowered and required to do so where such discretion is wrongly exercised.
See:OKOROCHA v. PDP & ORS (2014) LPELR-22058 (SC); ZERKON v. WANCHAR (2018) LPELR-44492 (CA); and JEFFCOM GLOBAL INTERGRATED SERVICE (NIG) LTD v. EMERGING MARKETS TELECOMMS (2018) LPELR-44916 (CA).
This issue is consequently resolved in favour of the Appellants.
ISSUE TWO:
WHETHER THE APPELLANTS’ RIGHT TO FAIR HEARING WAS NOT DENIED IN GRANTING THE RESPONDENTS’ MOTION FOR INTERLOCUTORY INJUNCTION. (GROUND 4)
Learned counsel for the Appellants argued that the trial Court’s holding to the effect that the Appellants did not offer any argument in Court and that the Respondent’s application for interlocutory injunction was uncontested, is wrong because the Appellants’ filed a counter affidavit with a written address, and is a breach of the Appellants’ fundamental right to fair hearing, as it shows that the argument of the Appellants was not considered before granting the application.
He relied on Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999.
On the other hand, learned counsel for the Respondents argued that the trial Court was right to grant the Respondent’s application for injunction because the Respondents had satisfied the Court, in a manner justifying the grant.
RESOLUTION
There is no gainsaying the fact that the right to fair hearing is fundamental, having been enshrined in and guaranteed by Section 36 of the 1999 Constitution of the Federal Republic of Nigeria. Hence, once the issue of fair hearing is raised on appeal, it must be taken with seriousness and where it is found that the lower Court breached the right to fair hearing, such a decision would be rendered a nullity.
A fundamental aspect of fair hearing, is the principle to the effect that both parties must be given every opportunity to be heard and where they make their case, the Court must accord due consideration to same. This is the practical effect of the latin maxim ‘audi alteram partem’.
The Apex Court in the case of DINGYADI V. INEC (2010) LPELR-952(SC) (Pp. 167-168, paras G – D) Per O. O. Adekeye, JSC, aptly put the foregoing thus:
“The standard of fair hearing requires the observance of the twin pillars of the rules of natural justice – namely:- (a) audi alteram partem, that is hear the other side and (b) nemo judex in causa sua – that is, no one should be a judge in his own cause. While the basic criterion and attribute of fair hearing include:- ‘That the Court or tribunal hear both sides and not only in the case before reaching a decision which may be prejudicial to any party in the case but on all material issues in the case. A hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call witnesses. Section 36 (1) of the 1999 Constitution.”
See: ARIJE v. ARIJE & ORS (2018) LPELR-44193 (SC); ADEWUNMI v. NIGERIAN EAGLE FLOUR MILLS (2014) LPELR-22557 (CA); and AYOOLA v. EGBEYALO (2018) LPELR-44804 (CA).
The aspect of the lower Court?s decision which the Appellants have taken issue with under the head of fair hearing can be found at page 151 of the records and is herein reproduced thus:
?The Plaintiffs filed a
11
Written Address in support of the application in compliance with the Rules. The Defendants merely filed a Counter Affidavit with an accompanying Written Address as required by the Rules. They did not proffer any argument in Court in support of the application believing perhaps that their Preliminary Objection will be sustained.
The Plaintiff?s application for interlocutory injunction therefore remains uncontested.?
The pith of the above holding by the trial Court is that the Appellants did not contest the application of the Respondents dated 4th January, 2010. In other words, the trial Court did not take into cognizance any opposition proffered by the Appellants, as a matter of fact, as far as the learned trial Judge was concerned, none were proffered.
A calm look at the proceedings at the lower Court reveals that the Appellants did file a Counter Affidavit dated 27th January, 2010, to the said application, found at pages 106-108 of the records, wherein they deposed to facts contesting the grant of the application. The trial Court ought to have considered the facts in the said Counter Affidavit before reaching its decision
12
and failure to do so indeed constitutes a breach of the Appellants? right to fair hearing.
This issue is also resolved in favour of the Appellants.
In summation I find the appeal meritorious and same is allowed by me. The decision of the lower Court delivered on 22nd of February, 2010 is hereby set aside.
Parties to bear their respective costs.
TOM SHAIBU YAKUBU, J.C.A.: I had a preview of the draft of the Judgment rendered by my learned brother, JAMILU YAMMAMA TUKUR, JCA, and 1 am in agreement with the reasons proffered therein, which culminated in the appeal being allowed.
Unarguably, the learned trial Judge was in error when he failed and/or neglected to consider the appellant’s counter affidavit dated 27 January, 2010 and filed against the respondents’ application for interlocutory injunction, which was tantamount to a denial of the appellant’s fundamental right to fair hearing. The said breach of the appellant’s constitutionally guaranteed right to fair hearing, clearly damnified the decision of the learned trial Judge, which was delivered on 22 February, 2010. Adigun v. Attorney General,
13
Oyo State, (1987)1 N.W.L.R. (pt. 53) 678; Salu v. Egeibo (1994) 6 N.W.L.R. (pt.348) 23. The ruling of 22nd February, 2010 in Re-Suit No: FHC/L/CS/01/2010 delivered by Lambo Akanbi, J., at the Federal High Court, Lagos Division, Lagos, is accordingly, set aside.
Each side to bear own costs.
TIJJANI ABUBAKAR, J.C.A.: My lord and learned brother Jamilu Yammama Tukur, JCA, granted me the privilege of having a preview of the lead judgment just rendered in this appeal.
?My lords reasoning and conclusion is in accord with mine, I therefore adopt the Judgment as my own, I have nothing extra to add.
?
14
Appearances:
Emeka ObegoloFor Appellant(s)
For Respondent(s)
Appearances
Emeka ObegoloFor Appellant
AND
For Respondent
