NCAA v. PROJECT EAGLE AIR LTD & ORS (2021)

NCAA v. PROJECT EAGLE AIR LTD & ORS

(2021)LCN/14987(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, February 26, 2021

CA/L/712/2017

RATIO

PRELIMINARY OBJECTION: DUTY OF THE COURT WHERE A PRELIMINARY OBJECTION IS RAISED

The law is trite that whenever a Preliminary objection is raised, the Court before which it is raised will have to suspend considering the proceedings on the merit of the case before it to determine the Preliminary objection. This is premised on the ground of the effect of a successful consideration of the preliminary objection which is to terminate the appeal as there will be no need to determine the merit of the appeal. See General Electric Co. vs. Akande (2010) 18 NWLR (pt. 1225) 596. In Galadima vs. State (2018) 13 NWLR (pt. 1636) 377 at 369, the Supreme Court held thus:
“An appellate Court is expected to deal with and dispose of a preliminary objection once raised by a respondent before taking any further step in the appeal.” PER EBIOWEI TOBI, J.C.A.

PRELIMINARY OBJECTION: EFFECT OF A SUCCESSFUL PRELIMINARY OBJECTION

Similarly, the apex Court has stated in clear terms in so many cases the effect of a successful preliminary objection. I will just make reference to Salami vs Muse (2019) LPELR-47038, where the Court held as follows:
“Once this preliminary objection on the competence of this appeal succeeds, the proceedings in the appeal would be aborted and the need to consider the issues raised therein would automatically abate. See L. M. Ericsson Nig Ltd v Aqua Oil Nig Ltd (2011) LPELR-8807, citing Ahaneku v. Ekeruo (2002) 1 NWLR (Pt. 748) 301, 30; NPA v. Eyamba [2005] 12 NWLR (pt 939) 409; UBN v. Sogunro [2006] 16 NWLR (pt 1006) 504, 521-2.” PER EBIOWEI TOBI, J.C.A.

APPEAL: WHEN WILL AN INTERLOCUTORY APPEAL BE INSTITUTED AS OF RIGHT

By the provision of Sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria, the appeal being an interlocutory appeal, it can only be instituted as of right if the grounds of appeal in question are grounds of law alone. The implication of this is that an interlocutory appeal which is not based on grounds of law alone or in other words when the grounds of appeal are mixed law and fact or purely on fact, the Appellant must obtain leave before filing same failing which the appeal will be incompetent. See Chief Eneh vs NDIC & Ors (2018) LPELR-44902 (SC); Mr Umanah Jnr vs NDIC (2016) 14 NWLR (pt 1533) 458.
Such an appeal that is to say the notice of appeal, the grounds and the issues formulated on the grounds will be struck out. Let me hasten to add that if however any ground of appeal is competent, the incompetent grounds will be struck out and the competent ground or grounds of appeal will sustain the appeal. This is because the law is certain to the effect that a single competent ground of appeal can sustain an appeal. See Chrome Air Service Ltd & Ors vs Fidelity Bank (2018) ALL FWLR (pt 920) 135; Alhaji Ekunola vs CBN & Anor (2013) 15 NWLR (pt 1377) 224. PER EBIOWEI TOBI, J.C.A.

APPEAL: ATTITUDE OF THE APPELLATE COURT TO A PARTY FILING PROCESSES OUTSIDE THE PERIOD STIPULATED BY THE LAW

No party in a Court has the power to file process outside the period stipulated by the law without seeking for an extension of time. Any party who does that will have to face the consequences of such arbitral use of litigant’s right or privilege as the case could be. Any party who is out of time should apply to Court for extension of time before the process is filed or bring a motion to regularize the process already filed. If a party does not comply with this procedure if he is out of time, the process filed will be incompetent and liable to be struck out. PER EBIOWEI TOBI, J.C.A.

APPEAL: PRINCIPLE OF LAW ON THE VALIDITY OF A NOTICE OF APPEAL

This appeal is obviously an interlocutory appeal. There is also no leave obtained by the Appellant before filing the notice of appeal. The only ground under which this appeal will be competent before this Court in the circumstance is, if the grounds of appeal are purely based on law or on question of law. In Dairo vs. Union Bank & Anor (2007)16 NWLR (Pt.1059) 99, Muhammad, JSC held:
“The settled principle of law on the validity of a notice of appeal is that when a ground of appeal involves a question of law, it alone can sustain that notice of appeal. Thus, by the provision of Section 233(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999, such a ground of law confers right of appeal on an appellant without the necessity of seeking or obtaining leave from any Court including this Court or the Court below.” PER EBIOWEI TOBI, J.C.A.
APPEAL: WHAT AMOUNTS TO PURE GROUND OF LAW, MIXED LAW AND FACT AND INDEED PURE GROUND OF FACT

I will at this stage take a little excursion into the law as to what will amount to pure ground of law, mixed law and fact and indeed pure ground of fact. A ground of law alone is a ground that deals with purely issues dealing with the misunderstanding, interpretation and the application of the law. What is on the front burner for consideration in a ground of appeal dealing with law alone is a ground where the law is the main focus of the ground. In this regard, the centre of attraction in the appeal is the interpretation, understanding and the application of the law. Anything apart from that will amount to mix law and fact. In Ifediorah & Ors vs. Ume & Ors (1988)2 NWLR (Pt.74) 5, the apex Court held: “There is no doubt that it is always not easy to distinguish a ground of appeal in law alone from that of mixed law and fact. One has to examine not only the bare wording of the ground, but also the relevant particulars supplied. It is only through that, that one can be able to ascertain whether the ground is a pure ground of law as couched or it is of mixed law and fact. The Supreme Court in its endeavor to minimise the difficulties being faced by the lower Courts in this regard, has provided some useful guidelines in Ogbechie & Ors v. Onochie & Ors (1986) S.C. 54 wherein Eso, J.S.C., said- “There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law, or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law. Where however the grounds are such that would reveal or are grounds that would question the evaluation of facts by the lower Tribunal before the application of the law, that would amount to question of mixed law and fact. The issue of pure fact is easier to determine.” (Underline for emphasis)
As mentioned earlier, an appeal on question of law alone is based on the law or the application of the law. If it goes into evaluation of facts before the application of the law, it will amount to mix law and fact. An appeal purely on law puts the law on the main burner for consideration. In Anoghalu & Ors vs. Oraelosi & Anor (1999) 10-12 SC 1; (1999) LPELR 496 (SC) at pages 16-19 Ogundare JSC (of blessed memory) held thus extensively on this issue:
“In Metal Construction (West African) Ltd. vs. D. A. Migliore & Ors: in Re Miss C. Ogundare (1990) ANLR 142; (1990)1 NWLR (Pt. 126) 299, this Court examined at length, the phrases: “a question of law” and “a question of fact” and referred to a number of cases on the point. On question of law, this Court in that case, per Karibi-Whyte J.S.C.at pages 149-150 of the former report had this to say: “Generally considered, the term ‘question of law’ is capable of three different meanings. First it could mean a question the Court is bound to answer in accordance with a rule of law. This excludes the exercise of discretion in answering the question as the Court thinks fit in accordance with what is considered to be the truth and justice of the matter. Concisely stated a question of law in this sense is one predetermined and authoritatively answered by the law. The second meaning is as to what the law is. In this sense, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. The question of law in this sense arises out of the uncertainty of the law. A question of the construction of statutory provision falls within this meaning. The third meaning is in respect of those questions which are committed to and answered by the authority which normally answers questions of law only. Thus any question which is within the province of the Judge instead of the jury is called a question of law, even though in actual sense it is a question of fact. The cases which readily come to mind are the interpretation of documents often a question of fact, but is within the province of a Judge. Also the determination of reasonable and probable cause for a prosecution in the Tort of malicious prosecution, which is one of fact, but is a matter of law to be decided by the Judge.”
And on question of fact the learned Justice of this Court, at page 150, said: “Now turning to what is a question of fact, it is easy to postulate that it is anything which falls outside the meaning of question of law. That will not be entirely correct, because there are exceptions. Like question of law, question of fact has more than one meaning. The first meaning is that a question of fact is any question which is not determined by a rule of law. Secondly, it is any question except a question as to what the law is. Thirdly, any question that is to be answered by the jury instead of by the Judge is a question of fact. A matter is generally held to be one of fact if it is one on which reasonable men may arrive at discrepant conclusions on the same evidence before them. When perception and evaluation of primary findings result in the conclusions in which a layman as well as a person instructed in the law give an acceptable opinion, it is a matter of fact. What are to persons trained in the law matters of fact, are often to laymen matters of opinion. In a narrow and more specific sense a question of fact does not include all questions that are not questions of law, but only some of them. It is opposed to a question of judicial discretion which is one of the exceptions.” Similarly, the apex Court per Galadima, JSC in Njemanze vs. Njemanze (2013) 8 NWLR (Pt. 1356) 376 held thus:
“This Court, for quite long, has set out some of the criteria for distinguishing a ground of law from that of mixed law and fact.
Some of these principles can be summarized in the following manner:
(i) First is the thorough examination of the grounds of appeal in the case to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted.
(ii) Where a ground complains of a misunderstanding by the lower Court of the law or misapplication of the law to the facts already proved or admitted, it is a ground of law.
(iii) Where a ground of appeal questions the evaluation of facts before the application of the law, it is ground of mixed law and fact.
(iv) A ground which raises a question of pure fact is a ground of fact.
(v) Where the lower Court finds that the particular events occurred although there is no admissible evidence before the Court that the event did in fact occur, the ground is that of law.

(vi) Where admissible evidence has been led, the assessment of that evidence is entirely for the Court. If there is a complaint about the assessment of the admissible evidence, the ground is that off act.
(vii) Where the lower Court approached the Constitution of a legal term of art in a statute on the erroneous basis that he statutory wording bears its ordinary meaning, the ground is that of law.
(viii) Where the lower Court or Tribunal applying the law to the facts in a process which requires the skills of a trained lawyer, this is a question of law.
(ix) Where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal Court will assume that there has been a misconception of law. This is a ground of law.
(x) Where the conclusion of the lower Court is one of possible resolutions but one which the appeal Court would not have reached if seized of the issue, that conclusion is not an error in law.
(xi) Where the Court of appeal finds such application to be wrong and decides to make its own findings such findings made by the Court of appeal are issues of fact and not of law.

(xii) Where the Court of appeal interferes in such a case and there is a further appeal to a higher Court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower Court of appeal is a ground of law not of fact.
(xiii) A ground of appeal which complains that the decision of the trial Court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a Court of appeal or a further Court of appeal). See the cases of BOARD OF CUSTOMS &. EXCISE vs. BARAU (SC) 48 and OGBECHIE vs. ONOCHIE (1986) 3 SC 58 – 64, where this Court interpreted the provisions of Section 213 (3) and 214 (3) of the Constitution of the Federal Republic of Nigeria, in pari material with the instant provisions of Section 233(2) and 232(2)(a) of the said Constitution. Other cases relied on by the Appellant in which the basis or perimeters for deciding whether a ground of appeal raises questions of law alone or of mixed law and fact and of fact are as follows:
(i) OJEMEN vs. MOMODU (1983) 3 SC 173 at 207.

(ii) RABIU vs. ATTORNEY GENERAL KANO STATE (1980) 8-11 (SC) also (1982) 2 NCLR 117.
(iii) NWADIKE vs. IBEKWE (1987) 4 NWLR (Pt. 67).
(iv) ABIDOYE vs. ALAWODE (2001) 6 NWLR (Pt.709) 463 at 472.
(v) IFEDIORA V. UMEH (1988) 2 NWLR (Pt. 74)5.
(vi) OFORKIRE v. MADUIKE (2003)5 NWLR (Pt.812) 166 at 176.
(vii) IDOWU V. STATE (2000) 12 NWLR (Pt. 680)48 at 68 – 69.
It has been further decided by this Court that in determining whether a ground of appeal includes question of law alone or of mixed law and fact, both the ground of appeal and the particulars of error or of misdirection shall be thoroughly examined to see whether it is ground of law alone or mixed law and of fact. See U.B.A vs. GMBH (1989) 3 NWLR (Pt. 110) at 389 to 390.” (underlined for emphasis)
I am in this preliminary objection called upon to determine whether the grounds of appeal are purely law or mixed law and fact. This is not an easy task as recognized even by the apex Court in a line of cases referred to above. In deciding the issue whether the grounds are grounds of law or mixed law and fact, I must emphasize here that cases are decided on the strength of the facts before the Court. This means cases are to be decided on the peculiarity of its facts. See Lamido vs FRN (2015) LPELR-40763 (CA).
Ordinarily, it would appear that a ground of appeal which challenge a finding on whether the facts disclose a cause of action seem to be challenging the jurisdiction of the Court but this is not so for all cases. A challenge on the finding of a cause of action whether it is purely on ground of law or mixed law and fact will depend largely on how the ground of appeal is couched. Even though it is not possible to decide on the issue of cause of action without looking at facts but when deciding the issue of cause of action, the only relevant document is the statement of claim in which case, the fact whether there is a cause of action is based on undisputed facts. The issue will then be, will the fact that a challenge on cause of action based on undisputed facts become a question of law? The Supreme Court has held that where a ground complains of a misunderstanding by the lower Court of the law or misapplication of the law to the facts already proved or admitted, it is a ground of law.
Another test the apex Court had recommended to determine question of law is where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appellate Court will assume that there has been a misconception of law. This is a ground of law. The point I am trying to make here is that the mere fact that the ground of appeal challenges the finding on the cause of action on its own does not make it a ground on pure law. The way the ground is couched will determine whether it is a pure ground of law or mixed law and fact. PER EBIOWEI TOBI, J.C.A.

MANDAMUS: WHEN AND HOW AN ORDER OF MANDAMUS CAN BE MADE

As to when and how an order of Mandamus can be made, this Court has stated the position in Chief Ikechukwu vs Hon. Nwoye & Anor (2013) LPELR-20349 (CA) in these words:
“Let me now restate the law and practice on the issue of the prerogative writ of mandamus. An order of mandamus lies to compel the performance of a public duty (usually ministerial) at the instance of a person who has sufficient legal interest in the performance of that public duty. Where a public duty is imposed on a public or government body, authority, department or official and the authority, department or official refuses or fails to perform that duty, an order of mandamus would issue to compel that body, authority, department or official to carry out that duty in respect of a person whose interest is directly and substantially affected by the refusal or failure to perform that duty. See AKINTEMI & ORS VS ONWUMECHILI & ORS (1985) 1 NWLR (Pt.1) 68, FAWEHINMI VS AKILU & ANOR (1987) 4 NWLR (pt 67) 797, FAWEHINMI vs. IGP (2002) 7 NWLR (Pt.167) 606 at 674, ULEGEDE VS. COMMISSIONER OF AGRICULTURE (1996) 8 NWLR (pt.367) 437 and SHITTA-BEY VS. FEDERAL CIVIL SERVICE COMMISSIONER (1981) 15 40. So an order of mandamus can only be made if the applicant has shown that:-
1. A law imposes on a public or government body or authority or department or official the performance of a public duty that is ministerial in nature
2. The applicant has a legal interest whose enjoyment or enforcement directly or substantially depends on the performance of that public duty by the said body or authority or department or official
3. A distinct and clear demand for the performance of the duty has been made and that the said body or authority or department or official has refused or failed to comply with the demand.
4. The applicants’ motives are not unreasonable see FAWEHINMI VS. AKILU (supra) and ULEGEDE VS. COMMISSIONER OF AGRICULTURE ( supra)437. PER EBIOWEI TOBI, J.C.A.

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

NIGERIAN CIVIL AVIATION AUTHORITY APPELANT(S)

And

1. PROJECT EAGLE AIR LIMITED 2. EXECUJET AVIATION GROUP 3. EXECUJET NIGERIA LIMITED RESPONDENT(S)

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is premised on the ruling of Hon. Justice C.M.A. Olatoregun of the Federal High Court sitting in Lagos in Suit No. FHC/L/CS/164/2016 – Project Eagle Air Limited vs. Execujet Aviation Group & 3 Ors delivered on 3/5/2017. The 1st Respondent (then Plaintiff) vide a Concurrent Writ of Summons and a Statement of Claim found on pages 1-27 of the record of appeal instituted an action against the 2nd and 3rd Respondents and the Appellant (then 1st – 3rd Defendants respectively) claiming the reliefs contained on pages 24-26 of the record. The Appellant entered a conditional appearance and raised a preliminary objection vide a motion on notice dated 26/9/2016, found on pages 37-39 of the record, that the suit is incompetent and that the Court lacks the jurisdiction to entertain the suit. The ground for the preliminary objection is that there is no cause of action disclosed against the Appellant. The lower Court after taking arguments on the preliminary objection delivered a considered ruling found on pages 87-89 (pages 1-3 of the judgment) of the record where it held:

“I have examined paragraphs 5, 6, 7, 62 to 70, 83 to 87 of the Statement of Claim.
I am satisfied that the combination of the facts in the stated paragraphs show the complaints of the Plaintiff against the 3rd Defendant. That it has substantial grounds to make a claim against the 3rd Defendant. Plaintiff wants the 3rd Defendant as the body vested with the statutory function of issuing or granting certificates of registration or approval to aircraft manufacturers and maintenance facilities or organizations in Nigeria to do its job.
If a Cause of Action is the entire set of circumstances giving rise to an enforceable claim then the Plaintiff can be said to have disclosed the wrongful act of the 3rd Defendant. I have no reason not to dismiss the Preliminary Objection.
Same is dismissed.”

The Appellant dissatisfied by the decision of the lower Court has thus filed this appeal vide a notice of appeal dated 18/5/2017 containing six grounds of appeal found on pages 90-96 of the record of appeal.

The Appellant’s brief filed 28/11/2017 but deemed as properly filed and served on 7/5/2019 was settled by Uche Uzochukwu Esq. In the

Appellant’s brief, learned counsel raised the following issues for determination:
1. Whether the suit at the Court below is not incompetent and liable to be struck out as it relates to the Appellant, same having not been commenced by way of judicial review?
2. Whether having regards to the Plaintiff’s Statement of Claim at the Court below, the learned trial Judge was right in holding that the Plaintiff’s suit disclosed a cause of action against the Appellant/3rd Defendant and that it is not incompetent?
3. Whether the Court can exercise jurisdiction to make orders against persons who are not parties to a suit before it, or to make orders that are incapable of enforcement?
4. Whether the 1st Respondent/Plaintiff’s action at the lower Court is not incompetent having been commenced under a repealed law?

On issue one, it is the contention of the Appellant that being that reliefs sought by the 1st Respondent are primarily for an order of mandamus, same ought to be brought by way of application for judicial review with the leave of the Court sought and obtained. He relied on

Order 34 Rule 1(1)(a) and 3(1) of the Federal High Court (Civil Procedure) Rules 2009. Counsel further argued that the 1st Respondent did not only commence the suit at the lower Court by a wrong form but also failed to obtain the leave of Court to commence same. He placed reliance onI.F.C vs. D.S.N.L Offshore Ltd (2008) 9 NWLR (Pt. 1093) 606 @ 631; A.G. Kwara State & Anor vs. Alhaji Saka Adeyemo & Ors (2017) 1 NWLR (Pt. 1546) 210 @ 246-247 on the imperativeness of obeying the rules of Court. Based on the foregoing, learned counsel submitted that the proper order the lower Court ought to have made is an order striking out the suit for non compliance. He cited Abdulmumini Musa Maitumbi & Anor vs. Edward Gideon Baraya & 2 Ors (2017) 2 NWLR (Pt. 1550) 347; Udo vs. R.T.B.C & S (2013) 14 NWLR (Pt. 1375) 488; Order 3 Rule 2(1) of the Federal High Court (Civil Procedure) Rules 2009 and cases of Fawehinmi vs. IGP (2002) 7 NWLR (Pt. 767) 606; Allison Akene & 4 Ors vs. Town Planning Authority & Anor (2013) 10 NWLR (Pt. 1362) 226; Halsbury’s Law of England (4th Edition Vol. 1) Page 134 @ para 124, it is the submission of counsel that an action for an order of mandamus cannot lie, unless

before the commencement of the action, the Plaintiff had served a letter on the statutory/administrative body, demanding the performance of the statutory/administrative duty in question, and there has been a refusal to comply with the terms of the demand. It is the further submission of counsel that had the learned trial Judge considered the Appellant’s points on condition precedent, the decision would have been totally different. He therefore urged this Court to resolve issue one in favour of the Appellant.

On issue two, counsel cited Okoye vs. Nigerian Constr. & Furniture Co. Ltd (1991) 6 NWLR (Pt. 199) 501 @ 540 on when a cause of action will exist and that the statement of claim must show that all the facts that need to be proved for the case to succeed have arisen and completed at all times before the commencement of the action. Learned counsel argued that the 1st Respondent had not exhausted all the administrative/statutory remedies provided in Section 35(1) of the Civil Aviation Act (CAA) and Part 20 of the Nigerian Civil Aviation Regulations (Nig CARs) before instituting the action at the lower Court; thus failing to fulfill a condition

precedent which renders the Court incompetent to entertain the suit. He placed reliance on A.G Kwara vs. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Bodunde vs. S.C.I & C.S (2013) 12 NWLR (Pt. 1367) 197; Eteidung Ukpong Williams & Anor vs. Chief Akpan Amos Udofia & 5 Ors (2017) 7 NWLR (Pt. 1563) 155; Madukolu vs. Nkemdilim (1962) 2 SCNLR 341; Atolagbe vs. Awuni (1997) 9 NWLR (Pt. 522) 537 @ 562. It is the submission of counsel that the 1st Respondent has not at any time applied for the revocation or cancellation of the license of the 2nd Respondent before bringing the suit. He cited Section 27(1) of the Act and Part 1.3 of Nig. CAR.s 2009; 27 (2); Part 20.1.5.1 Nig CARs 2012 Vol II. Counsel placed reliance on Fawehinmi vs. IGP (2002) 7 NWLR (Pt. 767) 606 which is to the effect that where an administrative or statutory body exercises its discretion on a matter within its discretion, such exercise cannot be impeached by Court, unless the discretion is alleged to have been wrongfully exercised. Counsel therefore submitted that from the statement of claim particularly paragraphs 67-74, the 1st Respondent was satisfied with the Appellant’s treatment of its

complaint against the 3rd Respondent and its decision thereat and in the absence of any allegation of wrong exercise of discretion, the Plaintiff’s statement of claim disclose no cause of action. Counsel posited that there are no facts in the statement of claim capable of invoking the Court’s supervisory jurisdiction to inquire into the exercise of discretion by the Appellant in this matter, not even paragraph 83 of the 1st Respondent’s statement of claim and as such, the Court lacked the requisite jurisdiction.

Counsel went further in positing that a party lacks cause of action, where the reliefs he seeks are not cognizable or provided by law as the appropriate reliefs/remedies for an alleged infraction. Learned counsel submitted that by Section 30(3)(b) of the Act, the Appellant has no powers to discipline any erring operator, save as provided by the Act and Nig. CARs 2009 and 2012. He also made reference to the Implementation Standards (IS) under the Nig. CARs 2009 dealing with legal enforcement actions particularly is 1.3.3 and 1.3.3(b) in stating that there is nothing in the relevant regulation entitling the Appellant to revoke or

cancel the license or certificate or approval of the 3rd Respondent, more so when the 2nd Respondent is not a Nigerian company doing business in Nigeria and not under the regulatory control or supervision of the Appellant. Counsel also contended that the 1st Respondent did not make any complaint against any staff or personnel of the 2nd and 3rd Respondents neither did it demand from the Appellant the cancellation and/or revocation of the certificate or license of the 2nd and 3rd Respondents or by any of their staff/personnel before bringing the suit at the lower Court. He urged this Court to resolve this issue in favour of the Appellant.

On issue three, it is the contention of learned counsel for the Appellant that none of the engineers or officials of the 2nd or 3rd Respondents is a party to the suit which is contrary to the position of the law that a Court cannot by an order bind persons who are not parties before it. On this contention, it is the submission of counsel that reliefs (f) and (g) of the 1st Respondent’s statement of claim are incompetent and granting same will be in violation of the principle of natural justice and

Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is the submission of counsel that the powers of the Appellant vis-à-vis Approved Maintenance Organizations do not extend to bodies and companies not licensed by it as the 2nd Respondent is not a Nigerian company and does not operate nor have facilities in Nigeria. It was also stated by counsel that the operation of the Civil Aviation Act and the Nigerian Civil Aviation Regulation do not have extra-jurisdictional application and cannot therefore be applied by the Appellant to organizations, companies and individuals who do not operate under the Act and/or Nig. CARs.

It is the argument of counsel that by couching reliefs (f) and (g) to seek joint orders intended to be enforced jointly against persons who are parties to the suit before the lower Court and persons who are not parties, and also seeking in the same reliefs orders which cannot be fully enforced against all the parties against whom they are sought, the reliefs are incompetent and academic. He called in aid the cases of Green Fingers Ltd vs. Musawa (2017) 5 NWLR (Pt. 1558) 308; Ugba vs. Suswam (2014) 14 NWLR (Pt. 1427)

264; Ardo vs. INEC (2017) 13 NWLR (Pt. 1583) 450. It is the final submission of counsel on this point that it is not the duty of the Court to perform a surgical operation among the parties/persons in order to isolate those against whom the orders sought would apply and those against whom the orders cannot apply.

On issue four, learned counsel citing Nationwide Development Co. vs. UBA Plc (1996) 3 NWLR (Pt. 437) 442; Leadway Assurance Co. Ltd vs. Jombo United Co. Ltd (2005) 5 NWLR (Pt. 919) 539 contended that the 1st Respondent commenced the suit at the lower Court under the Nigerian Civil Aviation Authority (Establishment) Act No 49 of 1999, which was repealed in 2006 by the Civil Aviation Act, 2006 which is the law in existence at the time the cause of action is alleged to have accrued. The effect of this, counsel stated is that the action is incompetent and the Court has no jurisdiction. He relied on Adesanoye vs. Adewole (2006) 14 NWLR (Pt. 1000) and urged this Court to resolve this issue in favour of the Appellant and dismiss the suit.

The 1st Respondent filed a Notice of Preliminary Objection dated and filed on 17/1/2020 urging this Court to

strike out/dismiss the appeal chiefly on the ground that the notice of appeal was filed outside the 14 days period prescribed by the Court of Appeal Act and the sundry grounds contained in the notice of preliminary objection.

In arguing the preliminary objection, it is the contention of learned counsel for the 1st Respondent that the notice of appeal which was filed on 19/5/2017 is incompetent and defective as same was filed outside the time stipulated by the Court of Appeal Act and without an order of this Court extending time within which the said notice of appeal may be filed. Counsel referred to paragraph 1.01 of the Appellant’s brief of argument and asserted that the paragraph admits of the fact that the instant appeal is an interlocutory appeal which should have been filed within 14 days. On admission, he cited Section 20 & 21(1) of the Evidence Act 2011; Amadi vs. State (1993)8 NWLR (Pt. 314) 644 @ 668. Counsel posited that by virtue of Section 24(2)(a) of the Court of Appeal Act Cap C36 Laws of the Federation of Nigeria 2004, the Appellant’s notice of appeal is incompetent and invalid and as such same ought to be struck out.

He relied on Regd. Trustees FGC vs. Okoisor (2007) All FWLR (Pt. 357) 978 @ 986; FRN vs. Tawakalitu & Ors (2013) LPELR-20663 (SC); Yusuf vs. Adewuyi Brothers (1991) 7 NWLR (Pt. 201) 39; Atuyeye vs. Ashamu (1987) 1 NWLR (Pt. 49) 267; Okonkwo vs. Okebukola (2013) 17 NWLR (Pt. 1384) 565-566; Onifade vs. Olayiwola (1990) 7 NWLR (Pt. 161) 130; UBN Ltd vs. Odusote Bookstores Ltd (1995) 9 NWLR (Pt. 421); Idris vs. Audu (2005) 1 NWLR (Pt. 908) 612; Intercontractors vs. U.A.C (1988) 2 NWLR (Pt. 76) 303. Counsel further posited that where the notice of appeal is held to be legally non-existence, all further steps or processes filed thereto, inclusive of the records of appeal and brief of argument predicated on the said notice of appeal must collapse. He placed reliance on Ape vs. Olomo (2010) LPELR-4988 (CA); Owners MV Baco Liners vs. Adeniji (1993) 2 NWLR (Pt. 274) 203; Dakan vs. Asalu (2015) 13 NWLR (Pt. 1475) 47 @ 73; Integrated Merchant Limited vs. Osun State Government & Anor (2007) LPELR-8803 (CA); UAC vs. Macfoy (1961) 3 All ER 1172.

Relying on the combined reading of Sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria, it

is the contention of counsel that Appellant’s grounds 1, 2, 3,4 ,5 and 6 of the notice of appeal are all incompetent being of mixed law and fact and failure of the Appellant to seek the leave of the Court to file the interlocutory decision is fatal. He placed reliance on Aqua Ltd vs. Ondo State Sport Council (1988) 10-11 SC 31 @ 43-44; Ogbechie & Ors vs. Onochie & Ors (1986) 3 SC 32 @ 35; Tudun Wada & Anor vs. FRN (2018) LPELR-44288 (CA).

Counsel listed out all the grounds of appeal in trying to expound that they are all grounds premised on mixed law and fact and urging the Court to strike out all the grounds. In proffering arguments against ground four, he cited Air Staff vs. Edward (2019) 14 NWLR (Pt. 1691) 183 @ 194; Coker vs. UBA (1997) 2 NWLR (Pt. 490) 641; Nigeria National Supply Co. Ltd vs. Establissment Sima of Vaduz (1990) 2 NWLR (Pt. 164) 526. For grounds six, he cited Njemanze vs. Njemanze (2013) 8 NWLR (Pt. 1356) 376 @ 400. Counsel stated that ground three of the notice of appeal does not arise from the decision of the lower Court and as such is incompetent. He referred to Saraki vs. Kotoye (1992) 9 NWLR (Pt. 262) 156;

Metal Const. (W.A) Ltd vs. Migliore (1990) 8 NWLR (Pt. 768) 48; Omega Bank (Nig) Plc vs. O.B.C Ltd (2005) 8 NWLR (Pt. 928) 547 @ 580; F.M.C Ido-Ekiti vs. Olajide (2011) 11 NWLR (Pt. 1258) 256 @ 279; Bello vs. Aruwa (1999) 8 NWLR (Pt. 615) 454; Egbe vs. Alhaji (1990) 1 NWLR (Pt. 128) 546; M.B.N Plc vs. Nwobodo (2005) 14 NWLR (Part omitted) 379; Iloabachie vs. Iloabachie (2000) 5 NWLR (Pt. 656) 194; Akibu vs. Oduntan (2000) 13 NWLR (Pt. 685) 446. Learned counsel stated that the Nigerian Civil Aviation Regulations 2012 referenced by the Appellant counsel do not form part of the records of the Court and as such cannot be relied on to sustain grounds 3 as regulations issued by an agency of the Federal Government of Nigeria are merely policy documents which must be placed before the Court by a party which seeks to rely on same. He cited UBN Plc vs. Ifeoluwa (Nig) Ent Ltd (2007) 7 NWLR (Pt. 1032) 71 @ 84; H.N.B Ltd vs. Gifts Unique (Nig) Ltd (2004) 15 NWLR (Pt. 896) 408. Counsel posited that the Nigeria Civil Aviation Regulation 2012 not forming parts of the records of Court, this Court cannot go outside the records of appeal to lay hold on it. He cited Dele vs. State

(2011) 1 NWLR (Pt. 1229) 508 @ 534; NSE vs. Katchy (2017) 7 NWLR (Pt. 1564) 278 @ 310. Counsel further posited that the consequence of ground 3 being declared incompetent is that the issue 2 formulated thereon will also be rendered incompetent on the strength of Ehuwa vs. Ondo State I.E.C (2007) All FWLR (Pt. 351) 1415 @ 1434; Okponipere vs. State (2013) All FWLR (Pt. 691) 1590 @ 1598; Shuaibu vs. N.A.B Ltd (1998) 4 SCNJ 109 @ 119; Kele vs. Nwerebere (1998) 3 SCNJ 84 @ 89 and same ought to be struck out. Counsel asserted that not even the fact that issue 2 was formulated from grounds 1, 3 and 6 of the notice of appeal can save it on the strength of C.P.C vs. Ombugadu (2013) All FWLR (Pt. 706) 406 @ 446; Kibiya vs. Rabiu (2005) All FWLR (Pt. 287) 998 @ 1024; Christaben Group Ltd vs. Oni (2010) All FWLR (Pt. 508) 1439 @ 1459; Folami vs. Okege (2008) All FWLR (Pt. 416) 1895 @ 1910; Gwandu vs. Gwandu (2004) All FWLR (Pt. 229) 841 @ 862; Kadzi International Ltd vs. Kano Tannery Co. Ltd (2003) FWLR (Pt. 184) 255 @ 279.

In attacking ground 5 of the notice of appeal, counsel argued that the Appellant lacks the locus to make the complaint contained in the said

ground as the 2nd and 3rd Respondents’ engineers are the proper parties to make the complaint captured in ground 5. He relied on Alh. Tsoho Dan Amale vs. Sokoto Local Government (2012) LPELR-SC 290/2003; Azuh vs. UBN Plc (2004) 14 NWLR (Pt. 893) 402 @ 421. On the strength of the preliminary objection, he urged the Court to strike out or dismiss the appeal.

The 1st Respondent’s brief dated and filed on 17/1/2020 but deemed as properly filed and served on 13/10/2020 was settled by Chukwudi Enebeli Esq. In the 1st Respondent’s brief, the following issues were raised for determination:
1. Whether the Honourable lower Court going by the facts in the originating processes before it and the reliefs sought by the 1st Respondent against the Appellant and the 2nd and 3rd Respondents was right to hold that a reasonable cause of action had been disclosed against the Appellant.
2. Whether the 1st Respondent suit at the Honourable lower Court was incompetent having not been initiated by way of a judicial review and under the Civil Aviation Act 2006

On issue one, learned counsel cited UBN vs. Umeoduagu (2004) 13 NWLR (Pt. 890) 352;

P.N Udo Trading Co. Ltd vs. Abere (2001) 11 NWLR (Pt. 723) 114; NPA Plc vs. Lotus Plastics Ltd (2005) 19 NWLR (Pt. 959) 158; Yare vs. N.S.W & I.C (2013) 12 NWLR (Pt. 1367) 143 @ 186; Sulgrave Holdings Inc. vs. FGN (2012) 17 NWLR (Pt. 1329) 309; Peacegate Oil & Gas Ltd vs. Hydrive Ltd (2012) 17 NWLR (Pt. 1329) 391 @ 403 on the definition of cause of action. Counsel also cited Rinco Const. Co. vs. Veepee Ind. Ltd (2005) 9 NWLR (Pt. 929) 85; Beloxxi & Co. Ltd vs. Southtrust Bank (2012) 2 NWLR (Pt. 1285) 605; Chevron Nig Ltd vs. L.D Nig Ltd (2007) 16 NWLR (Pt. 1059) 168 on the processes to look in determining if there is a cause of action. In the light of this, counsel made reference to paragraphs 5, 6, 7, 62, 63, 64, 65, 66, 67, 68, 69, 70, 83, 84, 85, 86 and 87 of the statement of claim and asserted that the said paragraphs will reveal that the complaint of the 1st Respondent against the Appellant was founded on the refusal and willful failure of the Appellant to properly sanction the 2nd and 3rd Respondents for their conduct and actions in relation to the 1st Respondent’s aircraft. It is the argument of counsel that the approach of the Appellant in

responding to the pleadings of the 1st Respondent in paragraphs 4.2.1 to 4.2.26 of the Appellant’s brief of argument is sufficient basis for this Court to come to the conclusion that indeed a cause of action had been disclosed against the Appellant. Counsel posited that the Appellant’s reference to Nig. Civil Aviation Regulations 2009 and 2012 ought to come by way of their defence to the 1st Respondent’s claim in the substantive suit. He therefore urged this Court to discountenance the Appellant’s reliance on the extraneous material in determining whether a reasonable cause of action had been disclosed against the Appellant on the authority of Woherem vs. Emereuwa (2004) 13 NWLR (Pt. 890) 398; Omnia Nig Ltd vs. Dyke Trade Ltd (2007) 15 NWLR (Pt. 1058) 576.

On the Appellant’s argument on Section 35 of the Act, it is the contention of learned counsel that the use of the word ‘may’ from the decision of Messy vs. Council of the Municipality Vass (1922) 22 SRNSW pg. 494 @ 497 conveys that the authority which has the power to do such acts has an option either to do it or not to do it. He cited Edewor vs. Uwegba (1987)

LPELR-1009 SC; Mokelu vs. Federal Commissioner Works & Housing (1976) 3 SC 60. Counsel stated that even if Section 35(1) of the Act is mandatory, the provision was whittled down completely in view of the express provision of Section 35(2) of the Act. It is the contention of the 1st Respondent’s counsel that all the authorities cited by the Appellant counsel which are to the effect that the 1st Respondent did not fully exhaust administrative remedies available before proceeding to Court, the authorities are not helpful to the Appellant as none of those authorities deal with the subject matter of the suit in question. He relied on Clement vs. Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39 @ 54-55; Afro Continental Nig Ltd vs. Ayantuyi (1991) 3 NWLR (Pt. 178) 211; Obasi vs. Mikson Ent Ltd (2016) 10 NWLR (Pt. 1539) 335 SC; APGA vs. Al Makura (2016) 5 NWLR (Pt. 1505) 316 on distinguishing facts. On the Appellant’s argument making reference to the Nig. Civil Aviation Regulation 2012, it is the 1st Respondent Counsel’s response that the said Regulation is not before the Court. He therefore referred this Court to his arguments contained in the preliminary

objection on this point. On whether the 1st Respondent was satisfied with the exercise of discretion by the Appellant and with respect to the learned counsel for the Appellant arguing that nowhere in the 1st Respondent’s statement of claim did the 1st Respondent allege wrongful or improper exercise of discretion, counsel for the 1st Respondent referred this Court to paragraph 83 of the statement of claim. On whether the reliefs sought by the 1st Respondent against the Appellant are not cognizable under the law, counsel relying on Buremoh vs. Akande (2017) 7 NWLR (Pt. 1563) 74 SC; Adeleke vs. Lawal (2014) 3 NWLR (Pt. 1393) 1 SC; Sheriff vs. PDP (2017) 14 NWLR (Pt. 1585) 212 SC contended that it is not the law that the success or otherwise of the reliefs of the 1st Respondent be determined at an interlocutory stage and that the fact that a claim will be unsuccessful is not the basis upon which a Court will hold that a cause of action is not disclosed. Counsel in reliance on GE Int’l Operations (Nig) Ltd vs. Q-Oil & Gas Services Ltd (2016) 10 NWLR (Pt. 1520) 304 SC posited that declaratory reliefs and orders emanating therefrom are not granted as

a matter of course but on satisfactory evidence being led in proof of same. It is the final contention of learned counsel relying on Mbadinuju vs. ICN Ltd (2007) 15 NWLR (Pt. 1058) 524; AG Federation vs. ANPP (2003) 18 NWLR (Pt. 851) 182 that the Appellant’s contention that the complaints of the 1st Respondent against the 2nd Respondent is not one that will warrant a revocation of the approved license of the 2nd Respondent offends the general position of the law that a notice of preliminary objection is not an avenue for a party to raise a defence to the Plaintiff’s claim. On the strength of this, he urged this Court to resolve issue one in favour of the 1st Respondent.

On issue two, it is the contention of 1st Respondent’s counsel that it is not in all cases where reliefs are sought against a person or corporation in respect of specific acts that pertains to their office that an Applicant may approach the Court by way of judicial review or that an order of mandamus may be granted. He cited CBN vs. SAP Nig Ltd (2005) 3 NWLR (Pt. 911) 152. It is the further contention of counsel that the fact that an order for mandamus cannot be issued

where there is an exercise of discretion does not mean that the 1st Respondent cannot make a claim or approach the Court where it has a grievance for the actions of the Appellant, a public body. Counsel posited that by a community reading of Sections 30 and 35(1) of the Civil Aviation Act, it would be revealed that the Appellant has a discretion to act by deciding whether to vary, suspend or revoke a license or permit; which implication going by the decision in CBN vs. SAP (supra) is that the 1st Respondent could not have initiated its claims against the Appellant by way of a judicial review. Counsel asserted that the fact that the 1st Respondent can apply for a revocation or suspension of a license by other means beyond what is stated in Section 35(1) gives credence to the 1st Respondent’s application through the Court by the institution of the instant suit at the lower Court. Counsel further asserted that from the Appellant’s brief of argument, it is clear that the Appellant’s contention that the 1st Respondent’s suit at the trial Court was for judicial review is only in relation to reliefs (f) and (g) and does not extend to reliefs

(d) and (e). Counsel reproduced reliefs (f) and (g) and argued that they are in the realm of mandatory injunctions citing Adeleye & Ors vs. The Executive Governor of Ogun State (2012) LPELR-9584 (CA); Hepa Global Energy vs. FRN (2016) LPELR-41288 (CA); Hon. Minister, FCT vs. Kaydee & Anor (year omitted) LPELR-41674 (CA); Ohakim vs. Agbaso (2010) 19 NWLR (Pt. 1226) 172 @ 229; Order 34 Rule 1(b) of the Federal High Court (Civil Procedure) Rules 2009 and stating that they ought not to be initiated by way of a judicial review. He called on this Court with respect to the interpretation of the word ‘may’ used in Order 34 Rule 1(2) of the Federal High Court (Civil Procedure) Rules 2009 and Sheriff vs. PDP (supra) in stating that the implication is that it is not compulsory or mandatory to initiate the action by way of a judicial review.

Counsel asserted that though the reliefs (f) and (g) may have been couched to appear similar to an order of mandamus, it does not foreclose the rights of the 1st Respondent to have initiated same outside an action for judicial review. He placed reliance on Ohiakim vs. Agbaso (supra). With respect to the

Appellant’s argument that the 1st Respondent’s suit at the lower Court was initiated under a repealed law and therefore incompetent, 1st Respondent’s counsel cited Anozie vs. IGP (2016) 11 NWLR (Pt. 1524) 387; Falobi vs. Falobi (1976) NMLR 169 @ 171 in urging this Court to do substantial justice rather than resorting to technical justice. He further cited Section 30 of the Interpretation Act and Okafor vs. Lagos State Government (2017) 4 NWLR (Pt. 1556) 404 in submitting that reference to Nigerian Civil Aviation Authority (Establishment) Act No. 49 of 1999 ought to be construed as reference to the extant law, Civil Aviation (Repeal and Re-Enactment) Act, 2006. He therefore urged this Court to resolve this issue in favour of the 1st Respondent and dismiss the appeal for lacking merit.

The Appellant exercising its constitutional right to a reply filed a reply brief on 7/12/2020. In responding to the 1st Respondent’s contention in its preliminary objection that the notice of appeal was filed out of time, it is the position of learned counsel that in line with Section 15(3)(5) of the Interpretation Act, which excludes public holidays

from the computation of time, the exclusion of the two Sundays that came between 3/5/2017 and 19/5/2017, the notice of appeal filed on 19/5/2017 is valid, same being filed at the completion of the 14 days allowed under Section 24 of the Court of Appeal Act. Counsel went further to reproduce all the grounds contained in the notice of appeal, analyzing them and arguing that all the said grounds are all questions of law on which leave of Court is not required. On the 1st Respondent’s contention that ground 3 of the notice of appeal does not arise from the decision of the lower Court, counsel submitted that the preliminary objection that gave rise to this appeal challenged the action for not disclosing any cause of action and that since cause of action is a question of law, every relevant law for the determination of its existence or not in any case is relevant. On the claim of the 1st Respondent’s counsel that the Nigeria Civil Aviation Act do not form part of the records of appeal and should be discountenanced, counsel referred to Section 30 of the Civil Aviation Act as well as the Background to the said Nigeria Civil Aviation Regulations 2012 (Vol. 2)

in submitting that the said Regulations take their validity from the Civil Aviation Act and therefore forms part of the subsidiary legislation in the Nigeria Aviation jurisprudence and which was also gazette and as such the Court is duty bound to take judicial notice thereof even without it forming part of the records of appeal. With respect to the 1st Respondent’s complaint on ground 5, it is the contention of counsel that the Appellant’s complaint in the ground is not that the 1st Respondent sought reliefs against the 2nd and 3rd Respondents but that it seeks orders mandating the Appellant to immediately cancel or revoke the approval and license of the 2nd and 3rd Respondents as well as those of their maintenance engineers, who incidentally are not parties in the action at the lower Court. On the strength of this, he therefore urged the Court to dismiss the preliminary objection.

In responding to issue one of the 1st Respondent’s brief, it is the position of learned counsel for the Appellant that none of the paragraphs of the 1st Respondent’s statement of claim reproduced in paragraphs 6.03 to 6.04 of its brief, shows that the

1st Respondent had complied with any of the provisions of Sections 35 or 36 of the Civil Aviation Act which effect is that the facts needed to complete a cause of action against the Appellant has not arisen. On the interpretation of the word ‘may’ as used in Section 35(1) of the Act, counsel posited that ‘may’ was used because the Act does not intend to compel any such person to make such application bearing in mind that an aggrieved person may accept any other form of settlement or even forgive the offender. It is the further submission of counsel that there is nothing in the Act empowering any one to apply to Court for cancellation, revocation or variation of any license without first applying to the Appellant and that Section 35(2) in no wise whittled down the effect of Section 35(1) of the Act. Counsel asserted that in ascertaining whether a party had exhausted the internal remedies, recourse is made only to the statement of claim and the Court does not wait till evidence is led in the matter, as it is a jurisdictional issue. On the nature of the reliefs of the 1st Respondent not being cognizable in law, counsel supported his earlier argument with Section 36(12) of the Constitution.

In replying issue two, it is the contention of Appellant’s counsel that contrary to the 1st Respondent’s argument that the Appellant did not exercise its discretion, there is nowhere in the pleadings where the 1st Respondent stated that the Appellant had discretion in the exercise of those power conferred on it by the Act. Counsel submits that Sections 30 and 35 of the Act do not admit of any discretion. Learned counsel called on this Court to hold that the interpretation of Order 34 of the Federal High Court (Civil Procedure) Rules is diversionary particularly by referring to Rule 1(b) and that the said rule or the cases cited by the 1st Respondent has no application in this matter as nothing is being sought to be restrained. Counsel also submitted thatFalobi v. Falobi (supra) does not apply in that the reliefs sought against the Appellant are not cognizable by law. On a whole, he urged this Court to allow the appeal and strike out the name of the Appellant from the Court below.

Before I consider the merit of the appeal, as required by law, I will first determine the fate of the

Preliminary objection raised by the 1st Respondent against the appeal. The 1st Respondent on 17/1/2020 filed a Preliminary objection to the hearing of the appeal by this Court on the ground that the Appellant should have sought leave to appeal as the grounds of appeal are grounds of mixed law and fact being an interlocutory appeal and also on the ground that the appeal was filed out of time. In the alternative, 1st Respondent wants grounds 3 and 5 to be struck out which will automatically lead to issues 2 and 3 to be struck out. The Preliminary Objection was argued in paragraphs 5.0 – 5.53 covering pages 5-16 of the 1st Respondent’s brief. The Appellant’s argument in opposition to the Preliminary Objection is found in paragraph 2.0 -2.09 covering pages 2-7 of the Appellant’s reply brief.

terminate the appeal as there will be no need to determine the merit of the appeal. See General Electric Co. vs. Akande (2010) 18 NWLR (pt. 1225) 596. In Galadima vs. State (2018) 13 NWLR (pt. 1636) 377 at 369, the Supreme Court held thus:
“An appellate Court is expected to deal with and dispose of a preliminary objection once raised by a respondent before taking any further step in the appeal.”

On the strength of that, I will now pause in the consideration of the appeal on the merit at this point

to consider the preliminary objection as it does not only make legal sense to consider the Preliminary objection first, it also makes logical sense to avoid any exercise in futility.

The main appeal is against the decision of the lower Court overruling the objection of the Appellant to the hearing of the suit instituted by the 1st Respondent against the Appellant and the 2nd and 3rd Respondents. The lower Court held that it had jurisdiction and so this appeal is against that decision. I am going on this route to make the point which is not in dispute that the appeal is an interlocutory appeal. By the provision of Sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria, the appeal being an interlocutory appeal, it can only be instituted as of right if the grounds of appeal in question are grounds of law alone. The implication of this is that an interlocutory appeal which is not based on grounds of law alone or in other words when the grounds of appeal are mixed law and fact or purely on fact, the Appellant must obtain leave before filing same failing which the appeal will be incompetent. See Chief Eneh vs NDIC & Ors (2018)

LPELR-44902 (SC); Mr Umanah Jnr vs NDIC (2016) 14 NWLR (pt 1533) 458.
Such an appeal that is to say the notice of appeal, the grounds and the issues formulated on the grounds will be struck out. Let me hasten to add that if however any ground of appeal is competent, the incompetent grounds will be struck out and the competent ground or grounds of appeal will sustain the appeal. This is because the law is certain to the effect that a single competent ground of appeal can sustain an appeal. See Chrome Air Service Ltd & Ors vs Fidelity Bank (2018) ALL FWLR (pt 920) 135; Alhaji Ekunola vs CBN & Anor (2013) 15 NWLR (pt 1377) 224.

Now back to the Preliminary objection. The Respondent has argued that the Notice of appeal filed on 19/5/17 was filed out of time as it was filed outside the 14 days period stipulated by law. The ruling was delivered on 3/5/17 and the appeal was filed on 19/5/17. The appeal by mathematical calculation should have been filed latest 16/5/17. It was rather filed on 19/5/17. This is three days beyond the date it should have been filed. No party in a Court has the power to file process outside the period stipulated by the law

without seeking for an extension of time. Any party who does that will have to face the consequences of such arbitral use of litigant’s right or privilege as the case could be. Any party who is out of time should apply to Court for extension of time before the process is filed or bring a motion to regularize the process already filed. If a party does not comply with this procedure if he is out of time, the process filed will be incompetent and liable to be struck out.

What is clear here in this appeal is that the Notice of appeal was filed out of time and no motion for extension of time was filed by the Appellant. This looks bad for the Appellant on the face value but is it really that bad? Let us find out as we move on in this judgment. The Appellant seem not to be shaken by this, as Appellant’s counsel submitted that in computation of time under the Interpretation Act, Sundays are not including in computing time for the filing of process and that if the two Sundays in between the 3rd and the 19th are removed, the Court will come to the conclusion that the notice of appeal was filed within time. An interesting agreement but is it right and

does it represent the position of the law? The answer to this question will demand looking at the provision of the Interpretation Act counsel to the Appellant referred to. The relevant provision is Section 15 of the Interpretation Act which provides thus:
“15 (1) A reference in an enactment to the time of day is a reference to the time which is one hour in advance of Greenwich mean time.
(2) A reference in an enactment to a period of days shall be construed-
(a) Where the period is reckoned from a particular event, as excluding the day on which the event occurs;
(b) Where apart from this paragraph the last day of the period is a holiday, as continuing until the end of the next following day which is not a holiday.
(3) Whereby an enactment of any act is authorised or required to be done on a particular day and that day is a holiday, it shall be deemed to be duly done if it is done on the next following day which is not a holiday.
(4) Whereby an enactment of any act is authorised or required to be done within a particular period which does not exceed six days, holidays shall be left out of account in computing the period.

(5) In this section “holiday” means a day which is a Sunday or a public holiday.”
My understanding of the above provision is that when the computation of time has to do with days and there is a reference point of an event, the day the event took place will not be counted as a day. In other words, the day the event took place will be excluded in computation of time. This is the purport of Section 15 (2)(a) of the Interpretation Act which this Court so held and interpreted in Adetona vs Edet & Ors (2004) 16 NWLR (pt 899) 338. This Court held thus:
“…In a nutshell, the provisions require that an appellant obtained leave of the High Court or that of the appellate Court in appeal against the decisions of the High Court in interlocutory matters. The same requirement has to obtain where the grounds of appeal raise issues of mixed law and facts.
The 1st respondent has alleged in the brief of argument that the notice of appeal in this matter was filed on 11/6/99, one day outside the time of 14 days allowed the appellant under the law. I think this point is clearly misconceived in that the date of event was not excluded.

Section 15(2)(a) of the Interpretation Act, Cap. 192, Laws of the Federation of Nigeria, 1990 provides:
“A reference in an enactment to a period of days shall be construed –
(a) Where the period is reckoned from a particular event, as excluding the day on which the event occurs.” (Underlining for emphasis)
The computation of 14 days should be from 29/5/99 and not 28/6/99. In the event, the filing of the said notice of appeal dated 10/6/99 on 11/6/99 should be within time. It follows therefore that the said notice of appeal is competent. The objection lacks merit and is hereby overruled.”
Relating that provision to the preliminary objection, the event from which the 14 days will start to count is the day the judgment was delivered, that is 3/5/17. By the provision of Section 15 (2)(a) of the Interpretation Act, the time will start running from 4/5/17. This means therefore that the Appellant has the advantage of one day. The latest time within which the Appellant should have filed this appeal is 17/5/17. The appeal was filed on 19/5/17. The Appellant still needs to account for two days for the appeal to be competent before this Court.

For Section 15 (2)(b) to apply there must be evidence that the day that the notice of appeal was due to be filed fell on a public holiday. This day does not include Saturday but includes Sunday and any other day which is declared a work free day. See Etsako West Local Government Council vs Isa Oshiobugie Christopher (2014) 14 NWLR (pt 1426) 73. If the day the process is due to be filed fell on Sunday or a work free day then that day will not be counted provided the process was filed on the next working day. See Dan Jumma Amadu vs Ibrahim Imma (2018) LPELR-44927 (CA). In the absence of any evidence that the 17/5/17 fell on a public holiday or a Sunday, the Appellant owes the two days.
Let us see whether Subsection 4 of Section 15 of the Interpretation Act will be of any help. In fact this is the subsection that the Appellant is relying on. Let me give the subsection the pride of place in this judgment as it relates to this point. I will reproduce it for ease of reference. It provides thus:
“Where by an enactment any act is authorised or required to be done within a particular period which does not exceed six days, holidays shall be left out of

account in computing the period.”
The Appellant seem to argue that by the above provision, the 14 days period required within to file the notice of appeal does not include Sundays. I know sometimes the mathematical equation of ‘less than or more than’ can be confusing for people who are not mathematicians or mathematically inclined but a closer look and thinking over the subsection, it seem to me that Sundays and public holidays will be excluded in the counting of the days when the days within which the act should be done is less than 6 days. If the days exceed 6 days then when computing time the holidays which include Sunday will be counted exclusive of the days. The point I am laboring to make in agreeing with the Appellant’s counsel is that since the notice is required to be filed within 14 days, which is more than 6 days, Sundays will not be counted within the 14 days. This means that the 14 days will be counted excluding the public holidays or Sundays in between. Between the 4th of May and the 19th of May are two weeks and for every week, there is a Sunday. This therefore means, there are two Sundays in between. Once the two

Sundays are counted outside the 14 days it comes to 16 days. Counting 16 days from the 4th comes to 19th. In this respect, the notice of appeal was not filed out of time and therefore the Appellant did not need leave to file the notice of appeal.

This is one down and one to go in this preliminary objection. The Respondent’s counsel submitted that the grounds of appeal are mixed law and fact and therefore the Appellant should have sought leave before appealing against the ruling being an interlocutory appeal. The law is properly stated by the Respondent in this appeal, which is that except the appeal is purely on grounds of law alone, the Appellant will require leave to appeal. By the provision of Section 242 of the Constitution of the Federal Republic of Nigeria, the Appellant will need leave to appeal against interlocutory matter if the grounds are of fact or mixed law and fact. See Ajuwa & Anor vs. SPDC Nig. ltd (2011) 12 SC (Pt. IV) 118; Onwubuariri & Ors vs. Igboasoyi & Ors (2011) 3 NWLR (pt 1234) 357. In Nwosu & Anor vs. Offor (1997) 2 NWLR (pt 487) 274, the Supreme Court per Ogwuegbu, JSC held as follows:

“Under the provisions of Section 220(1)(a) and (b) there is a general right of appeal as of right from the decision of the High Court to the Court of Appeal in all final decisions both in civil and criminal proceedings before the High sitting at first instance; and where the grounds of appeal involve questions of law alone in non-final decisions in both civil and criminal proceedings. Section 220(1)(b) is concerned with non-final or interlocutory decisions. See Ajani vs. Giwa (supra) and Rabiu vs. Kano State (supra). I have carefully examined the grounds of appeal. I am satisfied that the questions raised in them are of facts or at best, of mixed law and facts. Furthermore, the ruling in respect of which the grounds of appeal relate was not a final decision since it did not finally dispose of the rights of the parties in the suit. See Blay vs. Solomon (1947)12 WACA 175 @176; Bozson vs. Altrincham Urban District Council (1903)1 KB 547 and Akinsanya vs. U.B.A. Ltd (1986)4 NWLR (Pt. 35)273. The decision is interlocutory. Consequently, appeal on those grounds could not possibly have been as of right under Section 220 of the Constitution. An appeal on those grounds required

leave under Section 221(1) of the Constitution.”
This appeal is obviously an interlocutory appeal. There is also no leave obtained by the Appellant before filing the notice of appeal. The only ground under which this appeal will be competent before this Court in the circumstance is, if the grounds of appeal are purely based on law or on question of law. In Dairo vs. Union Bank & Anor (2007)16 NWLR (Pt.1059) 99, Muhammad, JSC held:
“The settled principle of law on the validity of a notice of appeal is that when a ground of appeal involves a question of law, it alone can sustain that notice of appeal. Thus, by the provision of Section 233(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999, such a ground of law confers right of appeal on an appellant without the necessity of seeking or obtaining leave from any Court including this Court or the Court below.”
The main point here is whether the grounds of appeal are purely grounds of law. If they are, there is no need to seek for leave but if they are not, since no leave was sought the appeal will be incompetent except for the grounds that are purely grounds of

law which can sustain the appeal while the other grounds will be struck out.

Both counsels have made spirited efforts in their submissions to justify their position. I will at this stage take a little excursion into the law as to what will amount to pure ground of law, mixed law and fact and indeed pure ground of fact. A ground of law alone is a ground that deals with purely issues dealing with the misunderstanding, interpretation and the application of the law. What is on the front burner for consideration in a ground of appeal dealing with law alone is a ground where the law is the main focus of the ground. In this regard, the centre of attraction in the appeal is the interpretation, understanding and the application of the law. Anything apart from that will amount to mix law and fact. In Ifediorah & Ors vs. Ume & Ors (1988)2 NWLR (Pt.74) 5, the apex Court held: “There is no doubt that it is always not easy to distinguish a ground of appeal in law alone from that of mixed law and fact. One has to examine not only the bare wording of the ground, but also the relevant particulars supplied. It is only through that, that one

can be able to ascertain whether the ground is a pure ground of law as couched or it is of mixed law and fact. The Supreme Court in its endeavor to minimise the difficulties being faced by the lower Courts in this regard, has provided some useful guidelines in Ogbechie & Ors v. Onochie & Ors (1986) S.C. 54 wherein Eso, J.S.C., said- “There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law, or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law. Where however the grounds are such that would reveal or are grounds that would question the evaluation of facts by the lower Tribunal before the application of the law, that would amount to question of mixed law and fact. The issue of pure fact is easier to determine.” (Underline for emphasis)
As mentioned earlier, an appeal on question of law alone is based on the law or the application of the law. If it goes into evaluation of facts

before the application of the law, it will amount to mix law and fact. An appeal purely on law puts the law on the main burner for consideration. In Anoghalu & Ors vs. Oraelosi & Anor (1999) 10-12 SC 1; (1999) LPELR 496 (SC) at pages 16-19 Ogundare JSC (of blessed memory) held thus extensively on this issue:
“In Metal Construction (West African) Ltd. vs. D. A. Migliore & Ors: in Re Miss C. Ogundare (1990) ANLR 142; (1990)1 NWLR (Pt. 126) 299, this Court examined at length, the phrases: “a question of law” and “a question of fact” and referred to a number of cases on the point. On question of law, this Court in that case, per Karibi-Whyte J.S.C.at pages 149-150 of the former report had this to say: “Generally considered, the term ‘question of law’ is capable of three different meanings. First it could mean a question the Court is bound to answer in accordance with a rule of law. This excludes the exercise of discretion in answering the question as the Court thinks fit in accordance with what is considered to be the truth and justice of the matter. Concisely stated a question of law in

this sense is one predetermined and authoritatively answered by the law. The second meaning is as to what the law is. In this sense, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. The question of law in this sense arises out of the uncertainty of the law. A question of the construction of statutory provision falls within this meaning. The third meaning is in respect of those questions which are committed to and answered by the authority which normally answers questions of law only. Thus any question which is within the province of the Judge instead of the jury is called a question of law, even though in actual sense it is a question of fact. The cases which readily come to mind are the interpretation of documents often a question of fact, but is within the province of a Judge. Also the determination of reasonable and probable cause for a prosecution in the Tort of malicious prosecution, which is one of fact, but is a matter of law to be decided by the Judge.”
And on question of fact the learned Justice of this Court, at page 150, said: “Now

turning to what is a question of fact, it is easy to postulate that it is anything which falls outside the meaning of question of law. That will not be entirely correct, because there are exceptions. Like question of law, question of fact has more than one meaning. The first meaning is that a question of fact is any question which is not determined by a rule of law. Secondly, it is any question except a question as to what the law is. Thirdly, any question that is to be answered by the jury instead of by the Judge is a question of fact. A matter is generally held to be one of fact if it is one on which reasonable men may arrive at discrepant conclusions on the same evidence before them. When perception and evaluation of primary findings result in the conclusions in which a layman as well as a person instructed in the law give an acceptable opinion, it is a matter of fact. What are to persons trained in the law matters of fact, are often to laymen matters of opinion. In a narrow and more specific sense a question of fact does not include all questions that are not questions of law, but only some of them. It is opposed to a question of judicial discretion which

is one of the exceptions.” Similarly, the apex Court per Galadima, JSC in Njemanze vs. Njemanze (2013) 8 NWLR (Pt. 1356) 376 held thus:
“This Court, for quite long, has set out some of the criteria for distinguishing a ground of law from that of mixed law and fact.
Some of these principles can be summarized in the following manner:
(i) First is the thorough examination of the grounds of appeal in the case to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted.
(ii) Where a ground complains of a misunderstanding by the lower Court of the law or misapplication of the law to the facts already proved or admitted, it is a ground of law.
(iii) Where a ground of appeal questions the evaluation of facts before the application of the law, it is ground of mixed law and fact.
(iv) A ground which raises a question of pure fact is a ground of fact.
(v) Where the lower Court finds that the particular events occurred although there is no admissible evidence before the Court that the event did in fact occur, the ground is that of law.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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the Court. This means cases are to be decided on the peculiarity of its facts. See Lamido vs FRN (2015) LPELR-40763 (CA).
Ordinarily, it would appear that a ground of appeal which challenge a finding on whether the facts disclose a cause of action seem to be challenging the jurisdiction of the Court but this is not so for all cases. A challenge on the finding of a cause of action whether it is purely on ground of law or mixed law and fact will depend largely on how the ground of appeal is couched. Even though it is not possible to decide on the issue of cause of action without looking at facts but when deciding the issue of cause of action, the only relevant document is the statement of claim in which case, the fact whether there is a cause of action is based on undisputed facts. The issue will then be, will the fact that a challenge on cause of action based on undisputed facts become a question of law? The Supreme Court has held that where a ground complains of a misunderstanding by the lower Court of the law or misapplication of the law to the facts already proved or admitted, it is a ground of law.
Another test the apex Court had recommended to

determine question of law is where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appellate Court will assume that there has been a misconception of law. This is a ground of law. The point I am trying to make here is that the mere fact that the ground of appeal challenges the finding on the cause of action on its own does not make it a ground on pure law. The way the ground is couched will determine whether it is a pure ground of law or mixed law and fact.

In this regard, it is necessary to reproduce the grounds of appeal to determine whether they are grounds purely on law or mixed law and fact. I will start with Ground 1.

GROUND 1. ERROR IN LAW
The learned trial Judge erred in law when she held that the 1st Respondent’s action as constituted disclosed a cause of action, when there is no allegation of wrongful exercise of discretion against the Appellant.

This ground as couched is not challenging the cause of action per say but rather the finding of the lower Court that there was a cause of action disclosed against the Appellant. The reason given for this challenge as disclosed in the

ground is that there is no allegation of wrongful exercise of discretion against the Appellant. There is no way of finding this out without looking at the claim whether there was really no allegation of wrongful exercise of discretion by the Appellant. Looking at the particulars of ground 1, it is clear that the Civil Aviation Act and the Nigeria Civil Aviation Regulations came into discussion not as the main law on the front burner but rather to determine whether there was allegation of wrongful exercise of discretion. The focus on this ground as couched is not the finding as to the law or indeed the application of the law to undisputed facts but rather it is the finding reached whether it was right or wrong on the facts so disclosed. In the circumstance, I am quite reluctant to concede that this ground is a ground of pure law, at best it is mixed law and fact. In the circumstance, the Appellant should have sought for leave to appeal.

GROUND 2. MISDIRECTION IN LAW
The learned trial Judge misdirected herself, when she failed to hold that the suit against the Appellant was incompetent having been brought under the repealed Nigerian Civil Aviation

(Establishment Act) Cap 94 LFN 2004.
This is purely a ground of law. There is not dispute about that as what is placed in the front burner of the ground is the right law upon which the Respondent brought the action. This deals with the application, understanding and misinterpretation of the law. No leave is required for this ground.

GROUND 3. MISCONCEPTION OF LAW
The learned trial Judge erred in law, when she held that the 1st Respondent has a cause of action, even when it failed to exhaust the internal remedies provided under the law before bringing the action.
This is a ground that is purely on law. Though it is a challenge on the cause of action but it is couched in such a way that the application of the law plays a major role. By the submission of counsel, by the law, that is Civil Aviation Act 2006 and Nigerian Civil Aviation Regulations 2012, the Respondent should have explore internal remedy before proceeding to Court in line with the law. The way this is couched and the particulars of the ground makes this ground a ground of law alone since the Appellant complaint is that the 1st Respondent did not comply with the provisions of the

law. No leave is required for this ground.

GROUND 4. MISCONCEPTION OF THE LAW
The learned trial Judge misconceived the law, when she failed to hold that the suit of the 1st Respondent/Plaintiff was incompetent, not having been commenced by way of an Application for Judicial Review.
Like ground 2, this is purely a ground of law.

GROUND 5. MISCONCEPTION OF LAW
The learned trial Judge misconceived the law, when she failed to dismiss the suit as it relates to the Appellant, the 1st Respondent/Plaintiff having sought an order that will be enforced against persons who are not parties to the suit and persons who are not under the regulatory powers of the Appellant.
This is a ground of law as it relates to the misconception of the law and what is at stake here is the law which is whether an order can be made against a person who is not a party to the suit. This is obviously a question of law and no leave is required here.

GROUND 6. ERROR IN LAW
The learned trial Judge erred in law, when she held that the 1st Respondent case before her had a cause of action, even when the reliefs sought therein against the Appellant were not

recognizable by law as the appropriate punishment for the alleged infraction.

This is also a question of law as the consideration here is whether the reliefs sought can be granted and whether they are reliefs which are recognized by law.

Apart from Ground 1, which is a ground of mixed law and fact, all other grounds are grounds of law and therefore the appeal can be sustained by grounds 2-6 of the Notice of Appeal. The preliminary objection fails largely and it is overruled.

Having decided on the preliminary objection, the coast is now clear to consider the merit of the appeal. I will now go into the merit of the appeal and in so doing I will adopt the issues for determination as raised or formulated by the Appellant. I reproduce them as follows:
1. Whether the suit at the Court below is not incompetent and liable to be struck out as it relates to the Appellant, same having not been commenced by way of judicial review?
2. Whether having regards to the Plaintiff’s Statement of Claim at the Court below, the learned trial Judge was right in holding that the Plaintiff’s suit disclosed a cause of action against the Appellant/3rd

Defendant and that it is not incompetent?
3. Whether the Court can exercise jurisdiction to make orders against persons who are not parties to a suit before it, or to make orders that are incapable of enforcement?

4.Whether the 1st Respondent/Plaintiff’s action at the lower Court is not incompetent having been commenced under a repealed law?

I will take issue 1 first. The contention of the Appellant is that the action was commenced by wrong procedure and therefore the lower Court had no jurisdiction to entertain the action. The Appellant’s counsel submission is that the 1st Respondent commenced the suit by way of a writ when in actual fact what the Respondent is seeking for in the lower Court is to compel the Appellant, a statutory body to carry out a duty imposed on it by law. The appropriate procedure to commence the action Appellant’s counsel submitted should be by way of judicial review using the prerogative writ of mandamus and not a writ of summons. If the Appellant is correct, the Respondent’s case in the lower Court will run into trouble waters as the Appellant did not commence the suit by way of judicial review and

therefore could not have sought for leave to apply for judicial review as it is the position of the law. The Respondent on the other hand is of the view that it is not in all cases that requires a public body to carry out their statutory duty that will be commenced by judicial review. This is the contention between the parties and it is this puzzle that I will use the instrumentality of the law to resolve in this judgment.

In the first place, the law as stated by the Appellant is right to the effect that the doors of the Court room will not be opened to a litigant who approaches the Court using a procedure that is not recognized by the law. The rules of Court have stated how certain grievances can be challenged in Court. If an action is commenced by wrong procedure the Court will decline jurisdiction. See Ezeanyika & Ors vs Gov. of Imo State (2006) LPELR-11860 (CA).
As to when and how an order of Mandamus can be made, this Court has stated the position in Chief Ikechukwu vs Hon. Nwoye & Anor (2013) LPELR-20349 (CA) in these words:
“Let me now restate the law and practice on the issue of the prerogative writ of mandamus. An order

of mandamus lies to compel the performance of a public duty (usually ministerial) at the instance of a person who has sufficient legal interest in the performance of that public duty. Where a public duty is imposed on a public or government body, authority, department or official and the authority, department or official refuses or fails to perform that duty, an order of mandamus would issue to compel that body, authority, department or official to carry out that duty in respect of a person whose interest is directly and substantially affected by the refusal or failure to perform that duty. See AKINTEMI & ORS VS ONWUMECHILI & ORS (1985) 1 NWLR (Pt.1) 68, FAWEHINMI VS AKILU & ANOR (1987) 4 NWLR (pt 67) 797, FAWEHINMI vs. IGP (2002) 7 NWLR (Pt.167) 606 at 674, ULEGEDE VS. COMMISSIONER OF AGRICULTURE (1996) 8 NWLR (pt.367) 437 and SHITTA-BEY VS. FEDERAL CIVIL SERVICE COMMISSIONER (1981) 15 40. So an order of mandamus can only be made if the applicant has shown that:-
1. A law imposes on a public or government body or authority or department or official the performance of a public duty that is ministerial in nature
2. The applicant has a

legal interest whose enjoyment or enforcement directly or substantially depends on the performance of that public duty by the said body or authority or department or official
3. A distinct and clear demand for the performance of the duty has been made and that the said body or authority or department or official has refused or failed to comply with the demand.
4. The applicants’ motives are not unreasonable see FAWEHINMI VS. AKILU (supra) and ULEGEDE VS. COMMISSIONER OF AGRICULTURE ( supra)437.
If the appropriate procedure the Respondent should have adopted is judicial review then this issue will be resolved in favour of the Appellant as the Respondent did not adopt the judicial review procedure which stands to reason that the action was commenced by wrong procedure. The Respondent did not apply for leave to commence the action by judicial review using the prerogative writ of mandamus and did not give the required notice before filing the action as stated in Ayida & Ors vs Town Planning Authority & Anor (2013) 10 NWLR (pt 1362) 226. In fact, in the Ayida case, the apex Court stated the meaning of a mandamus writ in these words:

“Mandamus has been defined as ‘a writ issued from a Court of competent jurisdiction commanding an inferior Tribunal, board or corporation to perform a purely ministerial duty imposed by law. See Nebel v. Nebel 241 NC 491, 85 S.E 2d 876, 882. Extraordinary writ which lies to compel performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff and a corresponding duty on the defendant, and a want of any other appropriate and adequate remedy. See Cohen v. Ford 19 Pa. Comwlth 417; 339 A-2d 175, 177 (Blacks Law Dictionary Sixth Edition, page 961 ).”
The Respondent did not come by way of judicial review or the prerogative writ of mandamus. The question is whether in the light of the reliefs sought in the writ, the appropriate and indeed the only procedure open to the Respondent was by way of judicial review? In answering this question, it will not be out of place to summarize the reliefs claimed by the 1st Respondent in the lower Court:
Relief (a) is declaratory relief against the 2nd and 3rd Respondent and its aircraft maintenance engineer or person approved aircraft maintenance by the Appellant by

virtue of the Nigeria Civil Aviation Authority (Establishment) Act, Cap N94 Laws of the Federation of Nigeria 2004 for gross negligence and recklessness for the repairs done to the aircraft of the 1st Respondent.
Relief (b) is seeking for a declaration that the 1st and 2nd Respondents and their staff are incompetent, unfit and unfit for the purpose of maintaining and operating aircraft maintenance.
Relief (c) is seeking a declaratory relief that the continuous involvement of the 1st and 2nd Respondent in the maintenance of aircraft is great danger, hazard and risk to the safety of the Nigerian air space.
Relief (d) is seeking a declaration in line with Section 7 of the Nigeria Civil Aviation Authority Act of 2004 that the Appellant is vested with statutory powers to cancel and revoke the approval it gave to the 2nd and 3rd Respondent.
Relief (e) is for declaration that in line with the Aviation Act, the 3rd Respondent has powers to sanction, prosecute and revoke the licenses and permits granted for maintenance to any person or company.
Relief (f), (g) & (h) has graduated from seeking for declaration to seeking for order.

In relief (f), the 1st Respondent is seeking for an order to compel and mandate the Appellant to revoke the approval of the license issued to the 2nd and 3rd Respondent.
Relief (g) is for order to compel and mandate the Appellant to investigate the 2nd and 3rd Respondent for possible sanction.
The final relief which is relief (h) is against the 2nd and 3rd Respondent to pay the sum of $25,000,000 for cost or replacement of the 1st Respondent’s aircraft. There are alternative reliefs to relief (h).
In submitting that the proper procedure to adopt is judicial review on those reliefs, the Appellant referred to Order 34 of the Federal High Court (Civil Procedure) Rules in making the submission that the Respondent should have come by way of judicial review. I have looked at the said provision and I do not see where it was stated that taking into cognizance the relief claimed, the Respondent should have come by way of judicial review. It did not state that all other form of injunction not covered by Order 34(1) should be by way of judicial review. If the rule wanted this kind of cases or the reliefs covered in this case to come under judicial

review, it would have made it mandatory as it did in Rule 1 of Order 34. This is not the situation but rather in Rule 2 the word used is ‘may’. I agree with the submission of the Respondent’s counsel that the word “may” used was deliberate and therefore it is not mandatory. It has been decided in a cloud of cases that generally when the word ‘may’ is used in a statute, it means that the duty imposed therein is not mandatory as it carries a permissive meaning placing a discretion on the person as distinct from the word ‘shall’ which is mandatory. There are sometimes when the word ‘may’ as been interpreted to carry a mandatory obligation but I am of the firm opinion that this is not one of such times as the word ‘may’ is deliberate and intentionally used in Order 34(2) of the Federal High Court (Civil Procedure) Rules. This position is based on the fact that in Order 34(1), the word ‘shall’ is used while in Rule 2, the word ‘may’ is used.
The Respondent was not under obligation to commence the action by judicial review. The law is that if a party has more

than one way to commence an action he can choice whichever way it pleases. Looking at the reliefs claimed, reliefs (a),(b),(c),(d),(e)&(h) are declaratory reliefs which has nothing to do with compelling the Appellant to carry out an act. The reliefs that deal with compelling the Appellant are reliefs (f) and (g). The main thrust of the 1st Respondent’s case at the lower Court is that the 2nd and 3rd Respondents has carried out acts injurious to it and therefore the Appellant should exercise its powers under the Civil Aviation Act and the Nigerian Civil Aviation Regulation to penalize the 2nd and 3rd Respondents. This is my understanding of the case before the lower Court. In the circumstance, I do not see why the Appellant thinks the appropriate commencement procedure should be judicial review. In the first place, the action commenced by way of writ has 8 reliefs in the main with 2 of the relief directed fully at the Appellant to carry out its duty to revoke or cancel the licence of the 2nd and 3rd Respondents. The case against the other Defendants in the lower Court which deals with relief (a),(b),(c),(d),(e) and (h) can go on even if the case

against the Appellant is struck out. This is more so that the reliefs sought are not against them jointly and severally but each relief as it affects each party. To demand that the whole case is incompetent because it is commenced by the wrong procedure is an over ambitious demand by the Appellant. I cannot see my way clear to resolve this issue in favour of the Appellant. This issue is resolved against the Appellant and in favour of 1st Respondent.

Issue 2 is not hard and difficult to resolve. In determining the cause of action in a case, the relevant document to consider is the processes filed by the party instituting the case, in this instance the 1st Respondent. The relevant process to look at therefore is the writ and the statement of claim found on pages 1-27 of the record. This is a trite position of the law. See Alhaji Yusuf & Ors vs Alhaji Akindipe & Ors (2000) 8 NWLR (pt 669) 376. In Nworika vs Mrs Ononeze- Madu & Ors (2019) LPELR-46521, the apex Court had this to say on this point on the cause of action. The Court held viz:
“In considering and deciding parties submission on issue two, I wish to state the law that cause of

action is the factual basis or scenario that formed the basis of invoking the jurisdiction of Court in a suit. A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. In determining the cause of action or right to sue, the Court will rely on the Statement of claim filed by the Claimants to determine their standing. See KUSADA VS SOKOTO NATIVE AUTHORITY (1968) 1 ALL NLR 377 where the definition in READ VS BROWN (1888) 22 QBD. 128 (C. A.). The Court must therefore confine itself only to the averments in the statement of claim in the assessment of whether or not the plaintiff has a locus to sue. See SHELL B. P. PETROLEUM DEVELOPMENT CO., OF NIGERIA LTD. & ANORS. VS ONASANYA (1976) 6 S. C. 89, at 94.
Cause of action necessarily touches on issue of jurisdiction. It is therefore fundamental to adjudicatory competence for a Court to first examine the basis of dispute, that is what led to instituting the suit, which is otherwise called ‘Cause of Action”. Any defect in the competence of a Court to entertain a matter is fatal, for the proceedings are a nullity, however well conducted.

Consequently, a determination by any Court or Tribunal without jurisdiction confers no right or obligation. See NWOSU VS I.S.E.S.A (1990) 2 NWLR (Pt.135) 688.
The settled position of law is that for the Court to be competent to exercise jurisdiction over a matter, it is a necessary condition that the proper parties be identified. See EHIDIMHEN VS MUSA (2000) 8 NWLR (Pt. 669) 540 at 569. In determining whether or not a Court has jurisdiction, without delving into the merit or otherwise of the case, all that the Court needs do is to look at the Writ of Summons and statement of Claim of the Claimant to establish the basis of the suit on which the Court may anchor its jurisdiction. See ADEYEMI VS OPEYORI (1976) 9-10 SC 31.”
The Court at this stage has no business whatsoever to consider the defence of the Appellant. That will be a compete waste as the only relevant document here is the Statement of Claim. If the statement of claim disclose facts upon which the right of the 1st Respondent will be determined against the Appellant, a cause of action exist against the Appellant.

A cause of action is defined as the set of facts that entitles a party to

maintain an action. The reason for coming to Court which will inform the decision of the Court is what is defined as the cause of action. The facts which the Court will decide on in determining the rights of the 1st Respondent is what will constitute a cause of action. In Barbus & Co (Nig) Ltd & Anor vs Okafor-Udeji (2018) 11 NWLR (pt 1630) 298, the apex Court in defining cause of action held:
“The question may be asked, what is reasonable cause of action Tobi, JSC (of blessed memory), in Rinco Construction Company Ltd v Veepee Industries Ltd & Anor (2005) LPELR-2949 (SC) at page 14 paragraphs E – G defined reasonable cause of action as follows:-
“Reasonable cause of action means a cause of action with some chances of success. For a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the Plaintiff and the obligations of the defendant. It must then go on to set out the facts constituting infraction of the Plaintiffs legal right or failure of the defendant to fulfill his obligation in such a way that if there is no proper defence, the Plaintiff will succeed in the relief or remedy he seeks.

Also reported in (2005) 9 NWLR (pt. 929) 85 and (2005) 3 – 4 SC page 1. See also Ibrahim v Osim (1988) 3 NWLR (Pt. 82) 257, Oshoboja v Amuda & Ors (1992) 6 NWLR (pt. 250) 690, SPDC Nig Ltd & Anor v X.M. Federal Ltd & Anor (2006) 16 NWLR (Pt.1004)) 189.
The law is trite that whenever issue of reasonable cause of action is raised, it is the statement of claim or, as in this case the averments in the affidavit in support of an Originating Summons or Motion that ought to be considered. So long as the statement of claim or the affidavit in support of the Originating Motion discloses some cause of action, or raises some question which can be decided by a Judge, there is reasonable cause of action. The mere fact that the case is weak, and not likely to succeed, is no ground for striking it out or dismissing it. See Yusuf & Ors v Akindipe & Ors (2000) 8 NWLR (pt. 669) 376.”
At the risk of space but for emphasis sake one more case will not hurt anyone. This is the case of CIL Risk & Asset Management Ltd vs Ekiti State Govt & Ors (2020) LPELR-49565 (SC) where Eko, JSC held:
“A cause of action simply

means the fact (not evidence) that will be necessary for the plaintiff to prove, if traversed, to support his right to judgment: THE SUPREME COURT PRACTICE (THE WHITE BOOK – English) 1991, vol. 1, pages 172 – 173 paragraph 15/1/23 states that “A cause of action” was held to mean “the subject-matter of grievance founding the action”: O’KEEFE V. WALSH (1903) 2, Ir. R.681 at 718; ANNS V. MERTON LONDON BOROUGH COUNCIL (1978) 2 ALL E.R. 492 . In other words, it is the reason for the grievance and the complaint to the Court for redress. It includes every material fact the plaintiff must, or shall, prove to enable him succeed against the defendant: AFOLAYAN V. OGUNRINDE & ORS {1990) 2 SCNJ 62 at 70.
In other words, as Obaseki, JSC had put it, in THOMAS V. OLUFOSOYE (1986) 1 NWLR {pt. 18) 669, the cause of action is the factual situation, the existence of which entitles one to obtain from the Court a remedy against another person. See also Lord Esher, M. R in READ V. BROWN (1998) 2 QBD 128 at 131 & 151 – cited with approval by this Court in SPDC OF NIG LTD V. XM (2005) 7 SC (pt. 2) 189; (2006) 16 NWLR (pt. 1004) 27.
For so long as the Statement

of Claim discloses the cause the plaintiff has to complain to the Court against the defendant for violation, infraction or imposition of undue burden on his legal rights or obligations, or raises some question fit to be decided by the Court or the Judge; a reasonable cause is disclosed thereby: YUSUF & ORS V. AKINDIPE & ORS (2000) 8 NWLR (pt. 669) 376 (SC). In my view, a reasonable cause of action is disclosed once the Statement of Claim sets out the plaintiff’s legal right qua the defendant’s obligations towards him, and goes further to set out the facts constituting the infraction of the plaintiffs’ legal rights or failure of the defendant to fulfill his obligations towards the plaintiff:
RINCO CONSTRUCTION CO LTD V. VEEPEE IND. LTD & ANOR (2005) 9 NWLR (pt. 929). Once the Statement of Claim discloses a reasonable chance that the plaintiff will succeed, if not traversed, on his allegations as pleaded; a reasonable cause of action will be said to have been disclosed. That is the substance of the English decision in DRUMMOND-JACOKSON V. BRITISH MEDICAL ASSOCIATION (1970) 1 WLR 688; (1970) 1 ALL E. R. 1094 (CA) cited with approval in

THOMAS & ORS V. OLUFOSOYE (supra). It is not material at this stage whether the case of the plaintiff is strong or weak. The only thing important at this stage is whether the Court can decipher from the Statement of Claim if there is either a prima facie triable case or issue or there is a reasonable chance of success if no defence were offered.”

I agree with the Respondent that a look at paragraphs 5, 6, 7, 62, 63, 64, 65, 66, 67, 68, 69, 70, 83, 84, 85, 86 & 87 of the statement of claims show connection of the Appellant to the case at hand since it is the statutory body that registers and licenses aircraft in Nigeria and also discipline erring members by disciplining erring companies and persons. The 1st Respondent has a challenge with one of the aircraft and the maintenance team of an aircraft licensed in Nigeria, the 1st Respondent is bringing an action against such companies and wants the Appellant to carry out its duty. If this is not a cause of action, I wonder what it is. I resolve this issue in favour of the 1st Respondent.

I will now address issue 3. In addressing issue 3 and indeed generally in dealing with interlocutory applications or

interlocutory appeals, the Court should be careful so as not to make pronouncements that will touch on the merit of the case. This is why I need to be very careful and indeed caution myself so that I do not go overboard. I make bold to say that this is not the stage to decide whether the order to be made by the Court will be enforceable or not. That will be speculative and a decision of a Court should not be based on speculation. See State vs Yahaya (2019) LPELR-47611 (SC).

The parties before the lower Court which the order of the Court will bind one way or the other are the 1st Respondent, Project Eagle Air Limited as Plaintiff, the Appellant in this appeal, 3rd Defendant in the lower Court, Nigeria Civil Aviation Authority, the 2nd Respondent, Executive Aviation Group, 1st Defendant in the lower Court and Executive Nigeria Limited, the 3rd Respondent in this appeal and 2nd Defendant in the lower Court. The decision of the Court one way or the other will bind all these parties. I am really at a loss how this is an issue to be determined here. I do not seem to see who will be bound by the decision of the Court who is not a party before the Court.

I resolve this issue in favour of the Respondent.

The final issue is the effect of commencing an action under a repealed law. The Appellant submitted that this is fundamental defect to the case of the 1st Respondent and therefore it affects the competence of the action. Before I specifically address the point here, suffice to say that a law that is repealed is completely abrogated and it has no effect whatsoever as it is dead and has no life whatsoever. In Olafisoye vs FRN (2004) LPELR-2553 (SC), the apex Court held:
“A repealed law no more has legal life, as it does not exist any longer; it cannot be cited as if it still exists. If it must be cited at all, it must be cited as a repealed law, which has no life to influence an argument. A repealed law cannot be basis for any comparison with existing law. It cannot be quoted side by side with existing law as learned Senior Advocate did.”
Similarly, in Abubakar vs Bebeji Oil & Allied Products Ltd & Ors (2007) 18 NWLR (pt 1066) 369, the apex Court held:
“When an Act is repealed, it is taken as though it never existed, except the actions which were commenced, executed and

concluded at the time the Act was in existence. See Surtees v. Ellison 9 B & C 750; and Kay v. Goodwin (1830) 6 Bing 576.”
Specifically on commencing action under repealed law, this Court in Mudashiru vs Persons Unknown & Ors (2004) LPELR-7412 (CA), held:
“From the appellant’s claim, the action was commenced under a repealed law namely Town and Country Planning Law of Lagos State, Cap. 188 of 1994 instead of the existing law which is the Urban and Regional Planning Law of 1997. Under the existing law, complaints in respect of building permit shall be referred to a Tribunal set up for that purpose before any matter can be taken up in the High Court.
The appellant brought her action under a non-existing law and even when the suit was challenged by the 2nd respondent, there was no application to the lower Court to amend the claim. I am therefore of the view that the trial Court was right in declaring the action incompetent on that ground. See the case of Ajagungbade III v. Adeyelu II (2001) 16 NWLR (Pt.738) 126.”
These authorities should not be taking as an open ended authorities to say that any action commenced

under a repealed law is incompetent. That is not what the authorities decided. In general, cases must be decided in the light of the facts before it.
A Court must be mindful not to deprive a party justice simply because the case is brought under a wrong law or repealed law. If the relief claimed can be supported by an existing law, the mere fact that the action was brought under a repealed and none existing law will not be grounds to deny the party access to justice. See Legal Practitioner Ordinance vs Edewor (1968) ANLR 224.

I have looked at the writ and the statement of claim found on pages 1-27 of the record, I do not seem to understand where the Appellant’s counsel argument to the effect that the action of the 1st Respondent was brought under the 1999 repealed Aviation law is coming from. The Law the 1st Respondent seem to refer to is the Nigerian Civil Aviation Authority (Establishment) Act cap N94 Laws of the Federation of Nigeria 2004. The current law seems to be the 2006 Act which is largely in line with the Act of 2004. This issue I again resolve in favour of the Respondent.

I have in this judgment deliberately resisted the

temptation to delve into the provisions of the Civil Aviation Act and The Nigerian Civil Aviation Regulation so that I do not make pronouncement on issues that may border on the substance of the main case as it is my firm opinion that dealing with the issues raised in relation to the Act may deal with issues that will affect the main case.

On the whole, having resolved all the issues in favour of the 1st Respondent, this appeal fails and it is dismissed. The ruling of the lower Court, Hon. Justice C.M.A. Olatoregun of the Federal High Court, Lagos Division in Suit NO: FHC/L/CS/164/2016 is hereby affirmed.
As a consequently order, I hereby order accelerated hearing of the case at the lower Court.
I award N200,000 cost in favour of the 1st Respondent against the Appellant.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother EBIOWEI TOBI, JCA and I agree with the reasoning contained therein and the conclusion arrived thereat.

My learned brother has exhaustively considered all the issues submitted for determination in this Appeal.

For the same reasoning as expressed by my learned brother, which I adopt as mine, this Appeal shall be and it is hereby dismissed.
I abide by all the consequential orders made by Tobi JCA in the lead Judgment.

HAMMA AKAWU BARKA, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother EBIOWEI TOBI, JCA just delivered. I agree entirely with the reasoning and conclusion reached, and do not have anything useful to add. The Appeal is lacking in merit and it is accordingly dismissed.

I abide by all orders made in the lead judgment, including the order made as to costs.

Appearances:

C. ITODO, ESQ. For Appellant(s)

CHUKUDI EBELI, ESQ., with him, BISOLA AKINWALE, ESQ. – for 1st Respondent
JOHNSON AGWU, ESQ. – for 3rd Respondent For Respondent(s)