OKADA AIRLINES LIMITED v. FEDERAL AIRPORT AUTHORITY OF NIGERIA (2014)

OKADA AIRLINES LIMITED v. FEDERAL AIRPORT AUTHORITY OF NIGERIA

(2014)LCN/7356(CA)

In The Court of Appeal of Nigeria

On Monday, the 7th day of July, 2014

CA/B/8/2010

RATIO

PRACTICE AND PROCEDURE: ORIGINATING SUMMONS; THE NATURE OF AN ORIGINATING SUMMONS AND THE PROCEEDINGS THAT MAY BE BEGUN BY ORIGINATING SUMMONS
The provisions of Order 2 Rule 2(2) of the Federal High Court Civil Procedure Rules 2011, calls for consideration here. The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming under a deed, will or any other written instrument whereby he will apply for the determination of any question of construction arising under the instrument for declaration of his interest. The evidence is by documents and there is no serious dispute as to facts since what the plaintiff is claiming is the declaration of his rights in view of undisputed facts. See Famfa Oil Limited v. Attorney-General of the Federation (2003) 18 NWLR Pt 852 Pg 453, Inakoju v. Adeleke (2007) 2 MJSC 1, Doherty v. Doherty (1968) NMLR 241.
The Supreme Court reiterated this position in Dapianlong v Dariye (2007) 8 MJSC 140, (2007) 4 S.C (Pt iii) 18, Onnoghen JSC held
“The originating summons procedure is a means of commencement of action adopted in cases where the facts are not in dispute or there is no likelihood, of their being in dispute and when the sole or principal question in issue is or likely to be one directed at the construction of a written law, constitution or any instrument or any deed, will, contract or other document or other question of law or in a circumstance where there is not likely to be any dispute as to the facts. In general terms, it is used for non-contentious actions or matters i.e those actions commenced by originating summons, pleadings are not required rather affidavit evidence are employed.”

Let us look at the relevant provisions of the Federal High Court (Civil Procedure) Rules 2000. Order 2 Rule 2(2) of the 2000 rules provides as follows:
2. Proceedings may be begun by originating summons where
(a) The sole or principle question at issue is, or is hereby to be, are of the construction of a written law or any instrument made under any written law, or of any deed, will, contract or other document or some other question of law; or
(b) There is unlikely to be any substantial dispute of facts.
What this rule of court states are the proceedings that may be begun by originating summons and in no ways suggests that it is only when a law or document must be submitted for interpretation before a proceeding may be began by originating process. The order of court is clear and unambiguous. Once there is no serious dispute as to facts and only to the construction of an enactment or instrument made under any law with regards to a party’s right or claim in his favour, an originating summons can be commenced. The rule also envisages that the originating summons procedure can be used when there is no substantial issue of facts. The word “or” is a disjunctive rather than an adjunctive word. So the Respondent could utilize the procedure where facts are not issue. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

EVIDENCE: AFFIDAVIT EVIDENCE; WHETHER IT IS ALSO NOT EVERY CONFLICT THAT ARISES FROM AFFIDAVIT EVIDENCE THAT ORAL EVIDENCE WOULD BE REQUIRED, WHETHER THE COURT CAN SUO MOTU RESOLVE CONFLICTING AFFIDAVIT EVIDENCE BY RESORTING TO THE DOCUMENTARY EXHIBITS AND WHETHER WHERE CONFLICTS IN THE AFFIDAVITS DO NOT TOUCH THE MATERIAL SUBSTANCE OF THE MATTER BEFORE THE COURT, DECISIONS MAY BE BASED ON THE EVIDENCE IN THOSE AFFIDAVITS WITHOUT RESORT TO ORAL EVIDENCE TO RESOLVE SUCH IMMATERIAL FACTS

The affidavit before the trial court directly touched the issues to be determined in the main appeal. The proceedings included the exhibits which were of paramount importance in resolving any dispute if any arose. The trial judge had considered the affidavits of both parties vis-a-vis the exhibits attached and clearly stated that he saw no substantial dispute on the facts. I cannot see any objection that can be raised to the stark wordings of this part of the judgment. It is also not every conflict that arises from affidavit evidence that oral evidence would be required. The court can suo motu resolve conflicting affidavit evidence by resorting to the documentary Exhibits. See Nwosu v I.S.E.S.A (1990) 2 NWLR Pt 135 Pg 688. Let me also note that where conflicts in the affidavits do not touch the material substance of the matter before the court, decisions may be based on the evidence in those affidavits without resort to oral evidence to resolve such immaterial facts. See L.S.D.P.C v Adold/Stamm International (NIG) LTD (1994) 7 NWLR Pt 358 Pg. 544. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

COURT: ERROR IN JUDGMENT; WHEN AN ERROR IN JUDGMENT WILL LEAD TO A REVERSAL

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL NOT DISTURB THE FINDINGS OF THE TRIAL COURT UNLESS IT IS PERVERSE

It is a settled position of the law that an appellate court will not disturb the findings made by a trial court unless the finding is either perverse in law or fact and has occasioned gross miscarriage of justice. See T.S.A. Industries LTD V Kema Investment LTD (2006) 2 NWLR Pt 964 Pg 1, Agbomeji Bakare (1998) 9 NWLR Pt 564 Pg 1. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

OKADA AIRLINES LIMITED Appellant(s)

AND

FEDERAL AIRPORT AUTHORITY OF NIGERIA Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Benin delivered by M.B. Idris J. on the 19/9/08 wherein the learned trial Judge granted the claims of the Respondent in its entirety as he found same to be meritorious. The following are the facts that led to this appeal:

The Appellant is a commercial airline operator and has a revalidated license to operate as a commercial airline carrier within Nigeria and Africa, the Respondent on the other hand is a statutory body created by the Federal Airport Authority of Nigeria CAP F5, Laws of the Federation of Nigeria 2004, which is empowered to make bye-laws regulating the use of airports in Nigeria, in furtherance of which the Federal Airports Authority of Nigeria Bye-laws 2005 were made. The bye laws make it an offence for anyone to park or leave any unserviceable aircraft in any part of the airport not designated for the repair or maintenance of aircraft, as it also empowers the Respondent to remove any offending aircraft to a designated place and to deem the aircrafts forfeited and to dispose of such aircraft in the event that the owner fails to reclaim it after 120 (one hundred and twenty) days of such removal.
The Respondent approached the court against the Appellant by way of an Originating summons dated 21/2/08 supported by an 18 paragraph affidavit attached thereto, inclusive of five exhibits, seeking the following reliefs:

1. A mandatory order directing the Defendant to remove within thirty (30) days from the making of this Order the several aircrafts now parked outside the Defendant’s private hanger and other places not designated for the maintenance and repair of aircrafts, including but not limited to those listed hereunder, that is:

S/N AIRCRAFT TYPE AIRCRAFT REG. NO

1       BOEING 727    5M-EDE
2       BAC 1-11       SN-AQP
3       BAC 1-11       5N-AYS
4       BAC 1-11       5N-MZE
5.      BAC 1-11      5N-AOZ
6       BAC 1-11       5N-NRC
7       BAC 1-11       5N-SDP
8       BAC 1-11       5N-AYW
9       BAC 1-11       5N-IVE
10       BAC 1-11     5N-AOS
11       BAC 1-11     5N-AYT
12       BAC 1-11     5N-AXQ
13       BAC 1-11     5N-AYV
14       BAC 1-11     5N-AYU
15       BAC 1-11     5N-USE
16       BAC 1-11     5N-ORO

2. An ORDER authorizing the plaintiff to remove the said aircrafts to a location or locations which the plaintiff shall designate for the purpose in the event that the Defendant fails to remove them within thirty (30) days of the making of the mandatory order mandating the defendant to remove them.

3. An Order deeming the said aircrafts as abandoned and forfeited to the plaintiff and authorizing the plaintiff to dispose of them in accordance with the plaintiff’s prescribed guidelines, if after the expiration of 120 days from the date of their removal by the plaintiff to a designated location, the defendant fails to recover them.

4. The sum of N500,000.00 per aircraft, being the statutorily prescribed fine payable by the defendant to the plaintiff on each of the said removal and disposal of the aircrafts.

The Appellant as defendant at the trial court filed a Notice of Preliminary objection dated 9/6/08, to challenge the competence of the suit, which was subsequently dismissed by a ruling dated 26/6/08 by the trial court. The appellant thereafter filed a counter affidavit and upon the argument of the parties on the originating summons the court delivered its judgment on the 19/9/08 and upheld the Respondent’s claim as being meritorious.

The Appellant not satisfied with that decision has appealed to this court. The Appellant filed a Notice of Appeal on the 14/10/08 with five grounds of Appeal. The Appellant’s brief of argument is dated 25/2/11, filed on the 29/9/11. The Respondent’s brief of argument is dated the 21/11/11 filed 6/12/11, deemed filed on 8/7/13.

Now to the preliminary objection since it has to be first determined before anything else. The fundamental objective of a preliminary objection is to essentially contend that the appeal (or ground of appeal as in this case) is incompetent and fundamentally defective, and should thus be discountenanced by the court.

The Respondent’s Counsel in the Respondent’s brief raised a preliminary objection and formulated one ground of objection. The ground reads as follows:
1. Whether or not ground 2 of the Notice of appeal and issues 2 and 3 distilled therefrom are competent?
The Respondent’s counsel contended that ground 2 of the Notice of Appeal and issues no 2 and 3 distilled thereof are incompetent and should be struck out. Counsel argued that the Appellant had by a preliminary objection dated 9/6/08 raised the same points during trial and the court by its ruling dated 26/6/08 had dismissed it. He further argued that the appellant failed to appeal against the ruling which was an interlocutory decision, but have surreptitiously attempted to sneak-in the same issues in the appeal against the final decision of the court. He contended that since ground 2 did not arise from the judgment of the trial court delivered on 19/9/08 it should be discountenanced, as when a ground of appeal does not arise from a judgment it must be discountenanced by the court of appeal and subsequently struck out. He cited I.G.P v. A.N.P.P (2007) 8 NWLR Pt 1066 Pg 457 at Pg 482, Okoro v Nwachukwu (2007) 4 NWLR Pt 1024 Pg 285 at Pg 295. Counsel further contended that any issue distilled therefrom must also fail, as issues for determination must flow from a competent ground of appeal, as any issue not derived from a competent and legitimate ground must also not be countenanced. He cited Ogunyade v Oshunkeye (2007) 15 NWLR Pt 1057 Pg 218 at Pg. 240.

At the hearing of the appeal, Appellant’s counsel stated astonishingly that he was unaware that the Respondent’s brief contained a Preliminary Objection.

The law is well settled that when an appellant fails to file a reply brief when necessary, it is deemed to have conceded the points arising therefrom. See Nwankwo v. Yar’adua (2010) 12 NWLR Pt 1209 Pg. 518. There is no doubt that it is particularly worse when a reply brief is not filed to a preliminary objection. Having not argued same, the objection is deemed to have been conceded. See Ayalogu v. Agu (1998) 1 NWLR Pt 532 Pg.129.

However, as I will expatiate fully anon, it is not in all civil proceedings that the preliminary objection must succeed. lf there are compelling legal or procedural reasons for rejection, this court has the discretion to be equitable, to do what is just and proper under the facts and circumstances of the case guided by the principle of law, to consider the merits of the preliminary objection.

With regards to the contention of the respondent’s, I have gone through the record of proceedings, and it is not at all in doubt that the appellant raised the issue of the originating summons in its preliminary objection and same was dismissed. It is indeed right as raised by the respondent’s counsel that, that would have been the appropriate time to appeal on that issue. However the question that we need to answer now is “Did the trial court judge address the appellant’s objection of the originating summons in the judgment? The answer is simply yes. Despite the fact that the trial judge verbatim reproduced the ruling dated 26/6/08, same formed part of its judgment delivered on the 19/9/08 and cannot be expunged from it as it arises/forms part of the judgment.
Against the backdrop of what I have stated above, the Appellant has a right to include its objection to the commencement of the suit by way of originating summons in its Notice of Appeal and can distill issues for determination therefrom. In the circumstances the respondent’s preliminary objection is misconceived and is dismissed.

In the brief settled by K.E Otoghile, ESQ, the Appellant’s counsel raised five issues for determination. The issues read as follows:
1. Whether or not the learned trial judge properly appraised the evidence of both parties as stated in the affidavit in support of the plaintiff/respondent’s originating summons filed on 21/2/08 and the defendant /appellant’s counter affidavit filed on the 1/7/08 (Grounds 1, 3 and 5).
2. Whether or not the court below ought not to have sustained Appellant’s preliminary objection based on the incompetence of the respondent’s suit. (Grounds 2 and 5).
3. Whether or not the learned trial judge was right when he held that there was nothing in order 2 rule 2(2) of the Federal High court (civil procedure) Rules 2000 which suggest that the law or document must be submitted for interpretation before proceedings may be begun by way of originating summons. (Ground 2)
4. Whether or not the learned trial judge was right when he suo motu resolved the conflict between the affidavit and the documentary evidence of both parties without calling oral evidence. (Ground 4)
5. Whether or not the learned trial judge was right when he held that there was no substantial dispute of facts in the affidavit evidence filed by both parties in the suit. (Ground 1)

In the brief settled by Olagunju Tomiloba Esq counsel for the Respondent formulated two issues for determination. The issues read as follows:
1. Whether or not the learned trial judge was correct in holding that the action of the respondent was validly commenced by Originating Summons (ground 2)
2. Whether or not the learned trial judge properly evaluated the evidence placed before him by the parties. (Grounds 1, 3, 4 and 5).

The issues formulated by the appellant counsels are repetitive and verbose. I shall therefore adopt the issues as formulated by the Respondent’s counsel for the determination of this appeal, as they are more concise.

Issue 1
Whether or not the learned trial judge was correct in holding that the action of the respondent was validly commenced by Originating Summons (ground 2)

Learned Appellant’s Counsel argued that in the counter affidavit dated 1/7/08, the entire facts of this case was put in serious dispute. He contended that on the face of the originating summons and the affidavit in support, there was no instrument or law, the basis upon which the trial court was been sought by the respondent to give interpretation to, and it was trite law that the court is never a father Christmas and cannot give what a party did not ask for. He further contended that the originating summons was incurably defective and submitted that this court has powers to make consequential order under Section 16 of the Court of Appeal Act. He cited Gbajumo Bunyan & 3ors v. A. O Akingboye & 2 Ors (2001) FWLR Pt 41 Pg 1977 at Pg 1990.

He further submitted that originating summons is a special method of commencing proceedings and is not open to litigants to commence every action with the procedure. He cited Oba Adegboyega Osunbade & 4 Ors v. Oba Jimoh Oladunni Oyewunmi & 2 Ors (2007) ALL FWLR Pt 368 Pg 1004 at Pg. 1013 and Pg 1014.

Learned Respondent’s Counsel argued that there is nowhere in Order 2 Rule 2(2) where it is required that to commence an action by originating summons the plaintiff must of necessity submit a specified section of the law or document for interpretation and reiterated the opinion of the learned trial judge by saying that in any case, forms are not of total application, therefore non-compliance with form stipulated is not a ground for nullity as he relied on Order 3 Rule 1 of the Federal High Court (Civil Procedure) Rules 2000. UBA v. Ekpo (2003) 12 NWLR Pt. 834 Pg. 332 was cited in aid.

Resolution
The provisions of Order 2 Rule 2(2) of the Federal High Court Civil Procedure Rules 2011, calls for consideration here. The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming under a deed, will or any other written instrument whereby he will apply for the determination of any question of construction arising under the instrument for declaration of his interest. The evidence is by documents and there is no serious dispute as to facts since what the plaintiff is claiming is the declaration of his rights in view of undisputed facts. See Famfa Oil Limited v. Attorney-General of the Federation (2003) 18 NWLR Pt 852 Pg 453, Inakoju v. Adeleke (2007) 2 MJSC 1, Doherty v. Doherty (1968) NMLR 241.
The Supreme Court reiterated this position in Dapianlong v Dariye (2007) 8 MJSC 140, (2007) 4 S.C (Pt iii) 18, Onnoghen JSC held
“The originating summons procedure is a means of commencement of action adopted in cases where the facts are not in dispute or there is no likelihood, of their being in dispute and when the sole or principal question in issue is or likely to be one directed at the construction of a written law, constitution or any instrument or any deed, will, contract or other document or other question of law or in a circumstance where there is not likely to be any dispute as to the facts. In general terms, it is used for non-contentious actions or matters i.e those actions commenced by originating summons, pleadings are not required rather affidavit evidence are employed.”

I am of the firm view that it does not matter that the form used by the Respondent in initiating the action is not in total compliance with the rules of court, in as much as there is no miscarriage of justice, it would be deemed a mere irregularity. Court forms are meant as a guide and do not need to be rigidly followed as substantive justice is what is paramount. See Okpetu v. Commissioner of Police, Delta State (2001) FWLR Pt 69 Pg 1317.

I am therefore of the considered opinion and in total agreement that the learned trial judge was right in law when he held at page 56 of the record:
“I must point out that the forms set out in the rules are not of total application, but merely to act as a guide. By Order 3 Rule 1 of the Federal High Court (Civil Procedure) Rules 2000, where in beginning any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements of the Rules in respect of for, the failure may be treated as an irregularity.”

A reading of the judgment of the trial court would show that his lordship had an excellent grasp of the law relating to originating summons. His lordship in a display of erudition stated at Pg 58 of the records as follows.
“The originating summons filed by the plaintiff herein clearly shows as a caption that the matter is about the Federal Airports Authority of Nigeria 2007, the Federal Airports Authority of Nigeria Bye-laws, 2005 and the abandoned Aircrafts at the Benin Airport. The reliefs or remedies claimed have been concisely stated with sufficient particulars provided in the accompanying affidavit in support of the Originating Summons. I think, there is substantial compliance by the plaintiff of the provisions of the Rules and nothing in the affidavit of the plaintiff leaves matters for conjecture. See Ajagun Gbade III v. Adeyelu II (2001) 6 NWLR (Pt 738) 126 at 187 – 191”.
I have gone through the record of proceedings, and given serious consideration to the totality of evidence before me, I am of the firm and considered opinion that this action was properly commenced via originating summons. In the circumstances this issue is resolved against the appellant.

Issue 2
Whether or not the learned trial judge properly evaluated the evidence placed before him by the parties. (Grounds 1, 3, 4 and 5).
On this issue, appellant’s counsel argued that if the trial judge had compared the 18 paragraph affidavit in support of the originating summon and all the exhibits attached thereto and in fact properly evaluated the entire evidence before him, he would have arrived at a different conclusion. He cited Andrew Ukachi Njoku & ors v. the Registered Trustees of the Congregation of the Holy Ghost Fathers (2007) ALL FWLR Pt 354 Pp 327 at 349.

He further argued that the complaint of the respondent as evident in its originating summons was that the appellant’s 15 aircrafts were scattered at various locations, but the respondent’s own letter exhibit FAAN 1 stated that they were kept in the appellant’s private hanger and urged this court to set aside the perverse judgment of the lower court, as the evidence before the court was not appraised, or such appraisal was a perverse one. He urged this court to review the findings of the trial court. He cited Civil Design Construction Nigeria Limited v. SCOA Nigeria Limited (2007) ALL FWLR Pt 363 Pg 1 at Pg 41 – 42; Gonzee Nigeria LTD v. Nigeria Educational Research and Development Council & 2 Ors. (2005) 12 MJSC 179 at 196.

Counsel argued that the trial judge was in error when he suo motu resolved the conflict in the affidavit evidence and the documentary evidence of both parties without calling for oral evidence. He further argued that Exhibits FAAN A-E are the various photographs attached to the affidavit in support of the originating summons (which could have been taken outside the Benin Airport) to which the appellant’s attached 7 photographs exhibit 1-7 stating the position of its aircraft in the Benin Airport, these irreconcilable exhibits were erroneously reconciled by the trial court without calling oral evidence. He submitted that it is an elementary principle of law that where affidavit evidence is in conflict, oral evidence ought to be led to resolve the conflict. He cited Eimskip Limited v Exquisite Industries (NIG) Ltd (2003) 105 LRCN 485 at 510. He further argued that the judgment was uncertain, as the issues regarding the number of aircrafts that are parked outside the appellant’s private hangers and the ones that are parked on appellant’s land, which land is within the Benin airport as held by the trial judge, whether same constituted an authorized place to park aircrafts, were never resolved by evidence whatsoever. He contended that a valid judgment must be confined to the determination of the issues raised and properly claimed. He relied on Chief Dr (Mrs) Olufumilayo Ransome Kuti & 3 Ors v the Attorney General of the Federation & 8 Ors (2001) FWLR Pt 80 Pp 1637 at Pp 1696 and submitted that the guiding rule is that the court must not grant a party what it has not asked for in clear terms and sufficiently proved and further cited Joe Golday Co Limited v. Cooperative Development Bank Plc (2003) 112 LRCN 2372 at 2387.

In response to this issue, Respondent’s counsel argued that the trial judge placed the affidavit side by side and concluded that there was no substantial dispute of fact in the respective affidavit of the parties, as the respondent had only to establish that the aircrafts belonged to the appellant and to show that they were not parked within the hanger of the appellant which is the only authorized place for aircrafts undergoing repairs. He further argued that pictures of the location of the aircraft were provided by both parties to show where the aircraft’s were parked, thus it was not hard for the judge to see that while some of the aircrafts are packed within the hanger others were parked outside the hanger, and this conclusion was derived from proper examination of the contents of the affidavit and the exhibits supplied. He submitted that exhibits annexed to an affidavit forms part of the affidavit and therefore constitutes a part of the evidence before the court. He cited University of Ilorin v Oyalana (2001) 15 NWLR Pt. 737 Pg 684 at Pg 706, NEC v. Wodi (1989) 2 NWLR Pt 104 Pg. 444 at Pg 455.

Respondent’s counsel contend that the appellant’s argument that even if the aircrafts were parked outside the hanger, there was no evidence that they were not authorized to park there is absurd as evidence abound both in the evidence of both parties that an aircraft cannot be parked anywhere but in the hanger. He further contended that since it was within the respondent’s undisputed authority to designate places for parking and repair of aircraft, the mere fact that he has requested that the aircraft be removed from that location is enough evidence that the aircrafts are parked without authorization, apart from a provision of the Federal Airport Authority of Nigeria Bye Laws 2005 positively deposed to in the affidavit in support of the originating summons. Counsel submitted that the appellant’s argument at the trial court was that its aircrafts are neatly parked inside its hanger and cannot now on appeal state that even if its aircrafts were parked outside the hanger there was no evidence that such parking was unauthorized.

In further response to the arguments and submission of Appellant’s Counsel above, the Respondent’s Counsel argued that the appellant’s argument that the trial judge was wrong in resolving the conflict between the documentary evidence of both parties without calling oral evidence was a deliberate misrepresentation of facts as the trial judge held that there was no substantial dispute of facts in the affidavit and the documents placed before court. Counsel insisted that the findings show that the trial judge placed reliance on exhibits FAAN3 A-E supplied by the respondent and Exhibit 1 – 7 supplied by the Appellant clearly corroborating this position. Counsel further submitted that in resolving conflicts in affidavit evidence resort to the exhibits annexed to the affidavit is permitted. He cited Yakubu v Nitel Ltd (2006) 9 NWLR Pt 985 Pp 367. Dana Impex v Awukam (2006) 3 NWLR Pt 968 Pg 544 at Pg 563, Balonwu v Obi (2007) 5 NWLR Pt 1028 Pg 488 at Pg 554. Counsel argued that the finding of the trial court was not perverse and no miscarriage of justice had occurred.

Resolution of issue 2
The appellant argued that the conflict in the affidavit evidence and the documentary evidence of both parties should have been resolved by calling for oral evidence. I have looked at the record of proceedings and I cannot agree that the trial court had to resolve any conflict whatsoever.
The trial court held at page 62 of the record thus:
“To my mind, there is no substantial dispute of facts in the affidavit evidence before the Court. The material evidence has been admitted by the defendant. The general or sweeping denial in paragraph 4 of the counter-affidavit is not sufficient to counter the depositions of facts made in the affidavit in support of the originating summons. See Emegokwue vs. Okadigbo (1973) 4 SC 113, Thani vs Saibu (1977) 2 SC 89, Ogunsola vs. Usman (2002) 14 NWLR Pt 788 Pg 636 at Pg.657 paragraphs D-E, and at 662 paragraph A.
In fact, from exhibits FAAN3 (a-e) which are photographs depicting the state of the defendants aircrafts, and Exhibit 1 – 7 attached to the defendants counter-affidavit, it is clear that while some of the aircraft are parked within hangers, others are parked outside the hangers”.

Let me also note that where conflicts in the affidavits do not touch the material substance of the matter before the court, decisions may be based on the evidence in those affidavits without resort to oral evidence to resolve such immaterial facts. See L.S.D.P.C v Adold/Stamm International (NIG) LTD (1994) 7 NWLR Pt 358 Pg. 544.

It is clear to me, that contrary to the claim of the Appellant that the judgment of the trial court was uncertain, because the aircrafts that are parked outside the appellant’s private hangers were unknown, Exhibits FAAN3 A-E annexed to the respondent’s affidavit and exhibits 1-7 attached to the appellants counter affidavit made it clear that some aircrafts were parked within the hanger and some outside. The respondent had sufficiently identified the type and aircraft registration number of the offending aircrafts. Sometimes a judge has to ignore the unnecessary dust raised by a party which can obscure the real issues in controversy in order to properly address the issues in contention between the parties. See Nwaeseh v. Nwaeseh (2000) 3 NWLR Pt. 649 Pg. 391.

There also exists sufficient evidence to show that the land where the 16 aircrafts are presently parked is an unauthorized place, as it is not in dispute that the respondent’s wrote to the appellant informing it of this position, to which the appellant contended that its aircrafts were located inside its hanger. However the Federal Airport Authority of Nigeria Bye-Laws 2005 made it an offence with a fine of N500,000.00 in addition to the cost of removal, for any person to park or leave an unserviceable aircraft in any part of an airport not designated for the maintenance or repair of aircrafts. Thus, any area not so designated is deemed an unauthorized area.

Even if we agree that the learned trial judge was wrong on his pronouncement of the claims of the Respondent, it is not every error in a judgment that will cause a reversal of the decision. An error will lead to a reversal only where it has caused miscarriage of justice. See Bayol v. Ahemba (1999) 10 NWLR Pt. 623 Pg. 381, (1999) 7 SC Pt. 1 Pg. 92; Oladele v. Aromolaran II (1996) 6 NWLR Pt. 453 Pg. 180 at Pg. 234; NBC v. Olarewaju (2007) 5 NWLR Pt. 1027 Pg. 255 at Pg. 267. I agree with the argument of learned respondent’s counsel that the Appellant must show that the judgment had occasioned a miscarriage of justice. The judgment of the trial court only empowered the Respondent to remove aircrafts which were parked in places not designated for the repairs and maintenance of aircrafts, so the appellant’s would suffer no loss if its aircraft are packed in authorized places, which implies then that this appeal serves only as an academic exercise. The Respondent has failed to show how the judgment would be detrimental to its interests.

This issue is therefore resolved against the appellant.
In the circumstances, the appeal is wholly without merit and is hereby dismissed. The judgment of M.B Idris J. delivered on 19/09/08 in Suit No. FHC/B/CS/25/2008 and the orders contained therein are hereby affirmed. Appeal Dismissed.

PHILOMENA MBUA EKPE, J.C.A.: I have had the opportunity of reading the draft judgment just delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJU (JCA). I am in total agreement with the reasoning and conclusions so well articulated therein that the appeal lacks merit and ought to be dismissed.

I however wish to add a few comments of my own in support of the very comprehensive lead judgment. The learned counsel for the respondent had in the lower court distilled two issues for determination which issues were rightly adopted by my learned brother in the lead judgment. The first issue formulated in the brief settled by Olagunju Temiloba which I intent to comment on reads as follows:

Issue One: Whether or not learned trial judge was correct in holding that the action of the respondent was validly commenced by Originating Summons (ground 2)

The approach of the learned trial judge M. B. Idris J. exemplifies the attitude of trial judges who make conscious efforts to attune themselves with both the law and the facts placed before them. My Lord Ogunwumiju JCA has demonstrably shown in the lead judgment that the evidence before the trial court is by documents and that there is no serious dispute as to the facts since what the plaintiff is claiming is the declaration of his right in view of the undisputed facts.
The plaintiff/respondent came by originating summons before the lower court and learned counsel for the respondent argued that there has been no substantial dispute of facts. The leaned trial judge cleverly separated the wheat from the chaff when he clearly stated that the originating summons shows that the matter is about the Federal Airports Authority of Nigeria Bye – Laws, 2005 and the abandoned aircraft at the Benin Airport. That the accompanying affidavit has clearly shown the reliefs and remedies with sufficient particulars in support of the originating summons.

The law is well settled that originating summons may be employed to commence an action where the issue involved is one of the construction of a written law, instrument, deed or will or other document or some question of law is involved or where there is unlikely to be any substantial dispute on issues of facts between the parties See KEYAMO V. HOUSE OF ASSEMBLY (2002) 12 SC (Pt. 1) 190.
In the case at hand, there has been no substantial dispute or issues of facts as the aircraft were obviously scattered all over the airport and not specifically all in the hangar as clearly revealed in the photographs exhibited at the trial court.

I tend to also agree with the reasoning of the trial judge that nothing in the plaintiff’s affidavit leaves matters for conjecture. However, the procedure for originating summons ought not to be used where the facts are likely to be in dispute. See PAM V. MOHAMMED (2008) 16 NWLR (Pt.1112) 1. In this case, the facts are clearly not in dispute as rightly held by the trial court which leaves us only with the discourse in the provisions of the Federal High Court (Civil Procedure) Rules 2000 Order 2 Rule 2(2). I am also of the ardent view that this action was properly commenced by originating summons.

For these and the much fuller reasons elucidated by my learned brother in his erudite lead judgment, I too agree that the appeal has no scintilla of merit and it is also hereby dismissed by me. The decision of the trial court delivered on the 19th day of September, 2008 is affirmed.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I read in draft the lead judgment just delivered by my Lord, HELEN MORONKEJI OGUNWUMIJU, JCA and I agree that the appeal lacks merit. The issues raised in the appeal have been fully addressed, I only wish to comment on the procedure to follow where there is conflicting affidavit evidence before the court.

It is settled law that when a court is faced with conflicting affidavit evidence on a material issue before the court, the court has to hear oral evidence in order to resolve the conflict. See OLU-IBUKUN vs. OLU-IBUKUN (1974) 4 E.C.S.L.R. 706 at 709 – 710, AKINSETE vs. AKINDUTIRE (1966) 1 ALL NLR 147 at 148, ARJAY LIMITED VS. AIRLINE MANAGEMENT SUPPORT LTD (2003) 7 NWLR (PT 820) 577 or (2003) LPELR (555) 1 at 31 and ATANDA VS. AKUNYUN (1988) 10 – 11 SC 1 or (1988) LPELR (588) 1 at 23.
However, where there exists some documentary evidence on the basis of which the conflicts in the affidavit evidence can be resolved, the court can dispense with the need to call oral evidence and resolve the conflict in the affidavit evidence by resorting to the documentary evidence that supports one of the affidavits. In MAGNUSSON vs. KOIKI (1991) 4 NWLR (PT 183) 119 at 129, Tobi, JCA (as he then was) stated:
“…there are conflicting affidavit evidence which this court and indeed any other court for that matter is not competent to resolve suo motu. See PHARMACISTS BOARD vs. ADEBESIN (1976) 5 SC 43, FALOBI VS. FALOBI (1976) 9 – 10 SC 1, EBOH VS OKI (1974) 1 SC 179, UKU VS. OKUMAGBA (1974) 3 SC 35. I will not make any effort to resolve the conflicting affidavit evidence as that is a futile exercise. But all I should do is to use the documentary evidence outside the depositions in the affidavit and come to a conclusion one way or the other as to the true position. The law does not require the calling of oral evidence to resolve conflicting affidavit evidence if there is sufficient documentary evidence to resolve the conflict.”
See also NWOSU vs. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT 135) 688 or (1990) LPELR (2129) 1 at 32 – 33, EIMSKIP LTD VS. EXQUISITE IND. (NIG) LTD (2003) 4 NWLR (PT. 809) 88 and LAFIA LOCAL GOVT. VS. EXEC. GOV. NASARAWA STATE (2012) 17 NWLR (PT 1328) 94 at 129.

From the Records of Appeal, it is manifest that the lower court correctly relied on the photographs attached to the affidavits filed on the location of the aircrafts in resolving the conflict as to whether the aircrafts were parked within the hanger or outside the hanger. In the circumstances, I also dismiss the appeal and affirm the judgment of the lower court delivered on 19th September 2008 in Suit No. FHC/B/CS/25/2008. I abide by the consequential orders made in the lead judgment.

Appearances

Ehinon OkohFor Appellant

AND

Tomiloba OlagunjuFor Respondent