A. I. C. Limited & Anor V. Federal Airports Authority (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A.(Delivering the Leading Judgment)

The appeal is from the decision of the Federal High Court, Lagos (the court below) dismissing the appellants’ notice of preliminary objection challenging the jurisdiction of the court below to entertain an action founded on damages for trespass and perpetual injunction against the respondent over leased property situate at Murtala Muhammed International Airport Ikeja, Lagos.

Briefly, the respondent issued a writ of summons dated 22-01-13 at the court below seeking reliefs of perpetual injunction, damages of N150,000,000.00 (One Hundred and Fifty Million Naira) for trespass to leased landed property and N50,000,000.00 (Fifty Million Naira) for costs of the action against the appellants.

In a preliminary objection the appellants argued at the court below that the action outside the jurisdiction of the court below and amounted to an abuse of the process of the court, in that similar action bearing No. FHC/L/CS/906/2010 was pending in the Federal High Court Lagos.

The respondent argued contrariwise. The court below saw no merit in the appellants’ preliminary objection. It overruled the preliminary objection. Consequent upon which the court below assumed jurisdiction in the case reasoning, also, that the action was not an abuse of the process of the court.

Unhappy with the decision of the court below, the appellants filed a notice of appeal bearing two grounds of appeal followed by a brief of argument with two issues for determination dated and filed on 02-07-14, couched thus –

“ISSUE ONE

Whether the Lower Court had jurisdiction to entertain the Respondent’s suit the subject-matter or principal claim/relief in which is founded on the tortuous claim of trespass. (Ground 1).

ISSUE TWO

Whether Suit No: FHC/L/CS/90/2013 instituted by the Respondent at the Lower Court during the pendency of post arbitration Suit No: FHC/L/CS/1058/2013 (and at a time when Appellant’s motion for interlocutory injunction, and motion for mandatory injunction dated 26/1/2012 and 11/1/2013 respectively in that earlier suit on the same subject matter were still pending), was wrongly held by the trial court NOT to be an abuse of court process. (Ground 2).”

After citing the cases of Madukolu v. Nkemdilim (1962) 1 All NLR 587, Dangote (Dongtoe) v. Civil Service Commission Plateau State (2001) 9 NWLR (pt.717) 132 at 150 and Sha’Aban v. Sambo (2010) 19 NWLR (pt.1226) 353 at 360 on the importance of jurisdiction or the competence of the court to entertain an action, the appellants argued that the action at the court below was founded on the tort of trespass, a claim at common law ousting the original jurisdiction of the court below vide Section 251(1) of the Constitution of the Federal Republic of Nigeria 1999, as altered (1999 Constitution, as altered), Section 7 of the Federal High Court Act, Cap.F12, Laws of the Federation (LFN) 2004 read with the cases of Oladipo v. N.C.S.B. (2009) 12 NWLR (pt.1156) 563 at 585, Adetona v. Zenith International Bank Ltd. (2009) 3 NWLR (pt.1129) 577 at 594 -595, Adisa v. Oyinwola (2000) 10 NWLR (pt.674) 116 at 174 -175, Nwocha v. Governor of Anambra State (1984) 6 SC 362, N.I.M.R. v. N.U.R.T.W. (2010) 12 NWLR (pt.1208) 328 at 349 -350 and Onuorah v. Kaduna Refinery and Petrochemical Co. Ltd. (2005) 6 NWLR (pt.921) 393; upon which the appellants contended that the court below erred in assuming jurisdiction over the dispute and urged that the appeal be allowed on the issue.Courts & Judiciary

Reliance was placed by the appellants on the subject matter in suit No. FHC/L/CS/1058/2010 to contend that the land in dispute in that action is the same as the one in the present action therefore the respondent’s action at the court below which gave rise to the present appeal constitutes an abuse of the process of the court and liable to be struck out vide the cases of R-Benkay (Nig.) Ltd. v. Cadbury (Nig.) Plc (2012) 9 NWLR (pt.1306) 596 at 614 -615 and 616 -618, Ansa v. Cross Lines Ltd. (2005) 14 NWLR (pt.946) 645 at 666, A. -G., Ondo State v. A. -G., Ekiti State (2001) 17 NWLR (pt.743) 706 at 771 and NIMB Ltd. v. UBN Ltd. (2004) 12 NWLR (pt.888) 599 at 622.

It is based on the submissions (supra) that the appellants advocate for the appeal to be allowed, and the decision of the court below set aside and the action struck out for being an abuse of the process of the court.

In a brief of argument filed on 27-10-14, but deemed properly filed on 04-02-15, the respondent adopted the appellants’ first issue for determination and distilled a semantically different second issue for determination, though in substance the same as the appellants’ second issue for determination thus –