The Registered Trustees Of The Airline Operators Of Nigeriavs Nigerian Airspace Management Agency (2014)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, JSC

By an originating summons dated 11th January, 2002, Airline Operators of Nigeria commenced an action against the Respondent herein and three others.

It set out two questions for determination by the trial court as follows:- “i. Whether having regard to the provisions to Section 7 (i) (r) and or any other section of the Nigerian Airspace Management Agency (Establishment etc) Decree No. 48 of 1999 which defines the functions of the 1st Defendant to include “charge for services provided by the Agency” and the payment of 5% (five percent) Ticket Sales Charge (JSC) by the Plaintiffs (sic) to the Defendants, the Plaintiffs are not in compliance with the law to entitle the 1st Defendant to impose a “So-Called” Domestic En-Route Charges, ii. whether having regard to the said Section 7 (i) (r) and or any other section of Decree No. 48 of 1999, the Defendants have and or can exercise any powers to the detriment of the Plaintiffs to arbitrarily vary and or substitute the charges payable by the Plaintiff” The Plaintiff then sought the following reliefs from the trial Federal High Court: (a) A declaration that the payment of 5% (five percent), Ticket Sales Charge (TSC) by the Plaintiffs to the Defendants is in compliance with Section 7 (i) (r) or any other section(s) of Decree No. 48 of 1999 for services provided for by the Defendants and precludes the 1st Defendant from the imposition of a so-call (sic) domestic en-route charges. (b) A declaration that the defendants have no power either under Section 7 (i) (r) and or any other section(s), of Decree No. 48 of 1999, to the detriment of the Plaintiffs to arbitrarily vary and or substitute the charges payable and being paid by the Plaintiffs; (c) An order of perpetual injunction restraining the Defendants either by themselves their agents, servants, representatives, privies and or whosoever acting for and or on their behalf from imposing any further and or other charges except as provided by the law and or has being complied by the Plaintiffs.” The Originating summons was supported by an Affidavit.

The Respondent herein filed a counter affidavit to the originating summons. The 3 other Respondents, apart from the Respondent herein, were struck out for various reasons in the course of the trial and appeal. The Appellant and the Respondent thereafter adopted their respective final written addresses and the matter was adjourned for judgment.

In a judgment delivered on the 19th day of June, 2003, the trial court, held that the Plaintiffs action succeeded and that the Respondent has no statutory power to levy the domestic en-route charges. The Court refused to grant the declaratory reliefs but went ahead to grant the sole injunctive relief. Before the judgment of the court was delivered, the Plaintiff by motion on notice dated 4th of April, 2003 sought an order of the trial court granting leave to amend the originating summons “to properly reflect the name of the Plaintiff to wit: “The Incorporated Trustees of Airline Operators of Nigeria” in place of the name: “Airline operators of Nigeria.” This application was granted by the trial court inspite of opposition from the Respondent. See Page 113 of the Record. PAGE| PAGE * Arabic 3 The Respondent by Notice of Appeal dated 6th August, 2003 filed an appeal contesting the decision of the trial court. The Notice of Appeal contains 4 grounds.

The Notice of Appeal was subsequently amended pursuant to an order of the court below and the extant Notice of Appeal is the one dated the 8th day of January, 2004 at Pages 135 – 138 of the Record. The Appellant’s brief of argument at the court below dated 11th May, 2004 is at Pages 154-172 of the Record. In response to the Respondent’s brief of argument in the court below, the Appellant herein (as Respondent in that court) filed its own brief of argument. The said brief of argument which is dated the 28th of April, 2005 is at Pages 186 – 204 of the Record of Appeal.

In its said brief, the Appellant herein gave notice of a preliminary objection wherein he contended that: “The 1st Respondent’s objection is that the Appeal is not arguable”. The Appellant thereafter embedded argument in respect of the Preliminary objection in its brief. In reaction to the Appellant’s brief at the court below, the Respondent herein filed a reply brief dated 8th of June, 2005. See Pages 202 – 204 of the Record.

When the appeal came up for hearing on the 17th day of November, 2005, the Appellant herein was absent and was not represented by counsel, (pages 205 – 206 of the Record). Counsel to the Respondent herein then moved the court to strike out the Appellant’s (who was Respondent) objection for failure to file a formal notice of preliminary objection and to argue it orally in court whereupon the court below reserved judgment. The Judgment of the court below which is dated the 15th day of February, 2006 is at Pages 207 – 238 of the Record. In its said judgment the court below held that the objection of the Appellant fell foul of Order 3 Rule 15 of the Court of Appeal Rules, 2002 and accordingly adjudged it incompetent and discountenanced same. The court below then considered the appeal on its merit and allowed it. In a unanimous judgment, the court held that the Respondent herein had the power under the enabling law to charge the domestic en-route charges and the decision of the trial court was set aside. Dissatisfied with decision of the court below, the Appellant herein under the name “The Registered Trustees of the Airline Operators of Nigeria” filed a Notice of Appeal dated 20th March, 2006. The Notice of Appeal contains three grounds of appeal out of which the Appellant has formulated three issues for determination.

When this appeal came up for hearing on 3rd December, 2013, O. Jolaawo Esq., Counsel for the Appellant leading other Counsel adopted their brief filed on 4/5/2010 but deemed properly filed on 13/10/10. The three issues as contained in the said brief are as follows:- 1. Whether the appeal at the Lower Court was not incompetent in view of the fact PAGE| PAGE * Arabic 4 that the Respondent therein is not a “person”/body known to law. 2. Whether the Lower Court was not in error to have struck out the Appellant as Respondent’s Preliminary objection on the basis that it was not in compliance with Order 3 Rule 15 of the Court of Appeal Rides 2002 when the number of days between the filing of the preliminary objection in the brief and the hearing of the appeal exceeded three days. 3. Whether the Lower Court was right in holding that Section 11 (b) (iv) of the Nigeria Airspace Agency Act empowers the Respondent as Appellant to levy in addition to ticket sales charges, “domestic enroute charges.” On the same date, Adetunji Oyeyipo, SAN who led another Counsel for the Respondent also adopted their brief filed on 9/1/12. In the said brief, three similar issues as that of the Appellant are also distilled.

They include: 1. Whether the appeal as constituted at the Court below was competent to allow the court to hear and determine the appeal on its merit. 2. Was the Court of Appeal right when it discountenanced the Appellant’s preliminary objection because the Appellant neither filed a formal notice of preliminary objection nor argued the objection orally before that court. 3. Has the Respondent, Nigerian Airspace Management Agency the power to levy, in addition to the ticket sales charge, any other charge including the domestic en-route charges under the Nigerian Airspace Management Agency (Establishment etc) Act Cap. N90 Laws of the Federation of Nigeria, 2004. Since both issues distilled by the Appellant and that of the Respondent speak the same language, I shall proceed to resolve them seriatim. It was the argument of the learned counsel for the Appellant on the first issue that although the Plaintiff (now Appellant) commenced this action at the trial court as Airline Operators of Nigeria, the said name was amended to “Incorporated Trustees of Airline Operators of Nigeria” and as such the amendment took effect from the date of commencement of the action, relying on the cases of ADEWUMI V. ATTORNEY GENERAL, EKITI STATE (2002) 2 NWLR (pt. 751) 474 at 506, AFOLABI V. ADEKUNLE (1983) 2 SCNLR 141. Learned Counsel contended that when the Respondent herein filed an appeal at the court below and deliberately used the Plaintiffs name which was before the amendment, he was suing a wrong party. That is to say, that the Respondent as Appellant at the lower court prosecuted its appeal against a “Respondent” who is not a person in law. He opined that the Respondent being an artificial person, its correct nomenclature ought to have been employed in prosecuting the matter against it at the lower court.

PAGE| 5 In conclusion, Learned Counsel submitted that the legal personality of the Appellant as Respondent before the lower court having been conferred by statute, the Respondent herein as Appellant at the Court of Appeal could not have properly been given judgment against the Respondent therein in any other name as a court cannot give judgment against a person not known to law. He cited and relied on the case of ABUBAKAR V. YAR’ADUA (2008) 19 NWLR (pt. 1120) I at 15 – 125 paras G – H. He urged the court to resolve this issue in favour of the Appellant. In his reply, the Learned Senior Counsel for the Respondent referred to the processes filed by the Appellant herein as Respondent at the Court below in which it referred to itself as “Airline Operators of Nigeria” and submitted that the parties were never in doubt as to the parties to the appeal. He argued further that where the parties to an appeal are not in doubt but the appeal is wrongly headed, it cannot affect the competence of the court to hear the appeal on its merit, relying on the following cases:- NOFIU SURAKATU V. NIGERIA HOUSING DEVELOPMENT SOCIETY LTD. (1981) 4 SC. 26, AKAI AKPAN UDO EKWERE V. THE STATE (1981) 9 SC. 3, GODWIN IKPASA V. THE STATE (1981) 9 SC. 5, ORUONYE ONWUNALIV. THE STATE (1992) 9 SC. 48. Furthermore, the Learned Senior Counsel submitted that an appeal is a continuation of the case from the court below and does not initiate a fresh case. According to him, since the trial court had held that the suit initiated under the name Airline Operators of Nigeria was competent enough to allow an amendment to the Incorporated Trustees of Airline Operators of Nigeria, the mistake in putting down the correct name of the Appellant in the heading of the Notice of Appeal does not go to the competence of the appeal. He then urged this court to resolve this issue against the Appellant.

The Appellant’s Counsel in his reply brief submitted that the defect in the Respondent’s Notice of Appeal (Appellant at the Court below) was in law much more fundamental than those in the authorities cited by the Respondent in its brief. That it is as to substance and not merely form. He urged this court to so hold. There is no modicum of doubt that the Appellant herein commenced this action at the High Court with the Name “Airline Operators of Nigeria.” Both parties attest to this as the facts are sacrosanct on it.

The matter was prosecuted with that name until the Appellant woke up from slumber and realized that such a name was unknown to law. It then filed a motion to have the name corrected which the learned trial judge obliged on the date judgment in the matter was delivered. That amendment, with all intents and purpose took effect from the date of the originating process filed. This is so because an amendment duly made takes effect from the date PAGE| PAGE * Arabic 6 of the original document sought to be amended and this applies to every successive further amendment of which ever nature and at whatever stage it is made. Therefore, when the learned trial judge granted the amendment, it dated back to when the Originating Summons was issued and the action would continue as if the amendment was inserted from the beginning. See. ADEWUMI V. ATTORNEY-GENERAL, EKITI STATE, (2002) 2 NWLR (pt. 751) 474, IMONIKHE V. ATTORNEY-GENERAL, BENDEL STATE (1992) NWLR (pt. 248) 396, OJA V. OGBONI (1976) 1 NMLR 95, OKOLO V. UNION BANK OF NIGERIA LTD (1999) 10 NWLR (pt. 623), SHELL PETROLEUM DEVELOPMENT CO. NIG. LTD V. AMBAH (1999) 3 NWLR (pt. 593).l It is trite that in civil litigations, courts have a duty to aim at, and to do substantial justice and allow formal amendments as are necessary for the ultimate achievement of justice and the end of litigation. The amendment thus granted by the trial court was proper. Although the Respondent has touched a bit on this, it is not the main issue. The real issue, is that after the said amendment, the Respondent herein, as Appellant at the court below still used the name originally used to commence the suit at the trial court (for which amendment was effected) to prosecute its appeal. It is this that the Appellant herein is contending that judgment was given by the court below against a wrong party or a party unknown to law. It is now well settled that a non-existing person, natural or artificial cannot institute an action in court, nor will an action be allowed to be maintained against a Defendant, who as sued, is not a legal person. Juristic or legal personality can only be donated by the enabling law.

This can either be the Constitution or a Statute. If the enabling law provides for a particular name by way of juristic or legal personality, a party must sue or be sued in that name. He cannot sue or be sued in any other name. See ANYAEGBUNAM V. OSAKA (2000) 5 NWLR (pt. 657) 386, FAWEHINMI V. NIGERIAN BAR ASSOCIATION (NO. 2) (1989) 2 NWLR (pt. 105) 558 at 595, ABUBAKAR V. YAR’ADUA (2008) 19 NWLR (PT. 1120) I at 150 – 152 paras G – H. The rationale behind this is that law suits are in essence the determination of legal rights and obligations in any given situation. Therefore only such natural and juristic persons in whom the rights and obligations can be vested are capable of being proper parties to law suits before courts of law. I must say that the Respondent herein as Appellant at the Court below may have goofed when it decided to use the name of the Appellant herein as originally and inappropriately used at the trial court before the amendment. But was that fatal to the appeal? I do notthink so. It is trite that an appeal is a continuation of the case from the court below. It does not initiate a fresh case. As it were, the parties were not in doubt as to the parties to the appeal. Where p arties to an appeal are not in doubt but the appeal is wrongly headed, as was done at the court below, it cannot affect the competency of the court to hear the appeal on its merit.