Arjay Limited & Ors V. Airline Management Support Limited (2000)

LawGlobal-Hub Lead Judgment Report

OMAGE, J.C.A.

There are three appeals by the appellant against the ruling of the Federal High Court Kano, presided over by the Honourable Justice Abdullahi Mustapha. Appeal number one is against the decision made by the court on a motion ex parte on 14th April, 1997.

Appeal number two is against the ruling made by the court on 21st March, 1997.

Appeal number three is against the ruling of the court made on 17th June, 1997.

The preamble is as follows: The respondent to the 3 appeals who was the plaintiff/applicant in the court below filed in the Federal High Court Kano, a writ of summons dated 21st March, 1997. In the writ of summons the plaintiff claimed monetary relief in dollars for a breach of contract by the appellants over a lease agreement made between the parties on 3rd February, 1997. The respondent/plaintiff in the court below also filed a motion ex parte dated 21st March, 1997 and on the said motion on the same day respondent/plaintiff received from the said court an order which restrained the appellant from removing the aircraft, subject of the contract out of Mallam Aminu Kano International Airport Kano. On the 25th March, 1997, the court granted leave to the respondent to issue the writ of summons outside the jurisdiction of the court by substituted service. The appellant’s brief shows that the motion on notice dated 25th March, 1997 was filed four days after the order for interim injunction was made. At the hearing of that motion on notice, and on the application of the appellant, the motion argued on 7th and 9th April, 1997, was heard, the appellant prayed that the order of 21st March, 1997 be struck out upon the appellant’s objection that the subject matter of the suit being a relief for breach of a contract is outside the jurisdiction of the court. Appellant averred in the court below that the said contract was entered into in the United Kingdom to be performed in the Equitorial Guinea, and that all the appellants are resident in the United Kingdom. The appellant prayed the court to strike out the names of the 2nd and 3rd appellants from the suit as they were not parties to the contract which form the subject matter of the suit. In the alternative the appellant sought in the court below an order setting aside or discharging the order of interim injunction which restrained the removal of the aircraft from Aminu Kano International Airport. The learned trial Judge ruled on the 14th of April, 1997 refusing all the appellants’ prayer except one. The order of the court made at the hearing in the circumstance is for the release of the detained aircraft upon payment by the appellants of 100,000 US dollars to the Registrar of the Federal High Court Kano, who would use the same to open an interest bearing account with the Union Bank Kano in trust for the parties and upon the inspection of the aircraft by officials of the Civil Aviation Authority of the United Kingdom, failing which officials of the Civil Aviation Authority of Nigeria were to conduct the inspection. The appellant’s were dissatisfied with the decision of the court and with the said order. On appeal No 1 they filed one ground of appeal with its particulars on page 178 of the record from which the issue submitted for determination arose. It is: “whether having regard to the claim and evidence before the court, the lower court had jurisdiction to entertain the suit.”

It is convenient at this stage before proceeding further to state that at the hearing of this appeal the appellant abandoned appeal number 2 in this appeal and urged the writ to strike out same, the issue proposed for determination by the appellant in appeal number 2 is as follows:-

“Whether an order of interim injunction pending the determination of the motion on notice should have been granted in the absence of the existence of a motion on notice?”

The respondent in their brief filed on 22/12/98 had reversed the order of the numerals in which the appellant set out their appeals and instead of commencing as appellant did, in their brief with appeal number, the respondents commenced their respondents’ brief with a response to appeal number 2 and appeal number one of appellant was by the respondent treated as appeal number 2. Upon the request therefore of the appellant to the court to strike out and appeal number two, it is hereby struck out the response thereto by the respondent in their brief is hereby also struck out.

In the appellant’s brief filed on 16/12/98, on the appeal number one, the issue for determination as above is “having regard to the claim and evidence before the court, the lower court had (No) jurisdiction to entertain the suit”. The appellant advanced the reasons in the brief of argument which includes: (1) The averments that the defendants reside outside the jurisdiction of the court. (2) That the contract was entered into in the United Kingdom. (3) That the contract was breached outside Nigeria. (4) That the contract was to be performed outside Nigeria.” It is because the above arguments 1 – 4 show that the appellants do not agree that the learned trial court is possessed of jurisdiction that I have deemed it appropriate to add the word “NO” above to the issue as formulated by the appellant, this in my view shows the real intendment of the issue at a glance.

The appellant in their brief have averred that the subject matter of the suit before the court was contracted outside Nigeria, and to be performed outside Nigeria, and the defendant being resident outside Nigeria the court cannot be said to be possessed of jurisdiction on the entire suit. It should be struck out. In its brief, the respondent argued that the appellants were deemed to have admitted in law the facts contained in the respondents affidavit, that the learned trial court had considered the facts of the case as contained in the affidavit and decided that it had jurisdiction and the facts referred to by the respondent in its brief on page 14 are:-

(a) That it was agreed that the aircraft shall be delivered to the applicants in Kano on 12th February, 1997 from where it shall depart to Malabo.

(b) That Captain Dayo Olubadewo flew from London on 9/2/97 for Kano to receive the aircraft; and that the aircraft did land in Kano. In this connection the respondent referred to exhibit PO3, attached to the affidavit in support of plaintiff/respondent motion.

A full appraisal of the whole facts should once again be focused upon the grant by the Federal High Court of an order on an ex parte application of the respondent on the aircraft of the appellant at the Mallam Aminu Kano Airport which was detained there at. The order was made upon the condition that a certain sum of money in U.S. dollars should be paid to the custody of the Registrar of the Federal High Court. The immediate response of the appellant who should have been respondent to the motion on notice filed on 25th March, 1997, after the interim order was issued was to raise a preliminary objection to the writ of summons, in which they asked inter alia, that the entire suit be struck out for lack of jurisdiction of the court: or in the alternative vacate the interim order. To further grasp the issue which is now being considered. I here repeat the issue. The appellant in appeal No.1 asked whether:-

“Having regard to the claim and evidence before the court, the lower court had jurisdiction.”