Ames Electrical Co. Ltd. V. Federal Airports Authority of Nigeria (2001)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A.

This is an appeal against the ruling of Hon. Justice J.T. Tsoho of the Federal High Court sitting in Ilorin in Suit No. FHC/IL/CS/30/98 delivered on 4th November 1999 in which he upheld the preliminary objection of the respondent as to the competency of the action and service of process therein and consequently dismissed the action.

The facts of the case are that the appellant, as plaintiff instituted the action against the respondent as defendant in the Federal High Court, Ilorin claiming as follows:

“WHEREOF the plaintiff claims from the defendant as follows:

(i) A sum of N638,574.14 being the sum due from and payable by the defendant to the plaintiff as the outstanding balance on a total contract sum of N2,550,894.20 for the extension of NEPA primary power supply to the VORIDME Air Navigational facility site in Lasoju-Otte Ilorin Airport which contract the plaintiff has since completed and which outstanding balance the defendant has failed to pay despite repeated demands.

(ii) 21% interest per annum from January 1996 to the date of judgment in this suit and thereafter at 10% per annum until the judgment debt is fully liquidated.”

See paragraph 22 of the statement of claim at pages 6 to 9 of the record. The statement of claim was filed on 31/12/98.

On the 20th day of July 1999 learned counsel for the respondent without filing a statement of defence, filed a notice of preliminary objection together with a supporting affidavit, praying the court for the following orders:

“1. That the plaintiffs/respondent’s action herein is incompetent for non-compliance with section 26 (2) of the Federal Airport Authority of Nigeria Decree No. 9 of 1996 which requires pre-action notice to the defendant/applicant before commencement of the action.

2. That the writ of summons together with the statement of claim herein filed were not properly served on the defendant/applicant herein as required by section 27 of the above decree.”

The relevant paragraphs of the supporting affidavit are (c) and (d) which deposed as follows:

“(c) that the plaintiff/respondent herein did serve the writ of summons on an unknown person at the Ilorin Airport on November 4, 1998.

(d) that the head office of the defendant/applicant herein is located at the Murtala Muhammed Airport, Ikeja, Lagos State.”

The record reveals that no counter-affidavit was filed by the appellant in opposition to the preliminary objection though the appellant averred in paragraphs 15 and 16 of the statement of claim thus:

“15. The plaintiff avers further that when the defendant failed to respond to the said letter of demand, the plaintiff’s solicitors had to give the statutory notice of the plaintiff’s intention to sue the defendant to the letter (sic) vide a letter dated 13/5/98 with a copy of the letter of demand hitherto sent attached thereto. The plaintiff pleads the solicitor’s letter of 13/5/98 and notice is hereby given to the defendant to produce the original thereof at the trial.