Arjay Limited Vs Airline Management Support Ltd (2003)

LAWGLOBAL HUB Lead Judgment Report

U. ONU, J.S.C.

By an application for a writ of summons dated the 21st day of March, 1997, the respondent as plaintiff, claimed against the appellants who were defendants before Abdullahi Musdapher, J. of the Federal High Court sitting in Kano, as follows:

“1 The sum of US $575,000.00 (Five Hundred and Seventy Five Thousand United States Dollars) being special damages suffered by the plaintiff as a result of the defendants’ alleged breach of aircraft lease agreement made by the parties on the 3rd of February, 1997.

2 The sum of US $500,000.00 (Five Hundred Thousand United States Dollars) being general damages suffered by the plaintiff as a result of the defendant’s alleged breach of aircraft lease agreement made by the parties on the 3rd of February, 1997.

3 Cost of filing and prosecuting this action.

4 Further or other reliefs.”

The background facts leading to the filing of this appeal may be briefly stated as follows:

By a motion ex parte dated 21st March, 1997, the respondents asked for and were granted an order for interim injunction restraining the appellants from removing the aircraft out of the Mallam Aminu Kano International Airport, Kano. On the 25th of March, 1997, the respondent got leave to issue and serve the writ of summons and other processes on the appellants outside the jurisdiction of the court by substituted means. Four days after the order of interim injunction was obtained, the respondent also on the same 25th March, 1997, brought a motion on notice for an order of interlocutory injunction. Upon the service of these processes on the appellants, they appeared by counsel and objected to the action on grounds of want of jurisdiction on the premise that the contract, subject-matter of the suit, was entered into in the United Kingdom and to be performed in Equatorial Guinea and all the appellants were resident outside the jurisdiction of the court. The appellants also prayed the court below to strike out the names of the 2nd and 3rd appellants from the suit, as they were not privy to the contract which forms the subject matter of the suit and in the alternative to the 1st two prayers, an order setting aside or discharging the order of interim injunction. Arguments were proffered on the application aforesaid and a ruling thereon was delivered on 14th of April, 1997 wherein the learned trial Judge dismissed the objection to jurisdiction and all the other prayers of the appellants save the last prayer to which was added by amendment of the appellants’ motion and preliminary objection dated the 4th of April, 1997 praying that the aircraft be released upon provision of adequate security by the appellants.

The learned trial Judge thereupon ordered the release of the aforesaid aircraft upon payment by the appellants of US $100,000.00 to the Registrar of The Federal High Court, Kano who would use the same to open an interest yielding account with the Union Bank, Kano in trust for the parties and an 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.

Subsequent to the ruling, the respondent brought a motion ex parte dated the 30th of April, 1997 to vary the order of the learned trial Judge for the deposit of US $100,000.00 paid into court to be converted to its Naira equivalent to be used by the Registrar of the court to open an interest yielding account with the Union Bank of Nigeria PLC in trust for the eventual winner.

The said motion ex parte having been moved and granted as prayed in the respondent’s favour, the appellants moved their own motion on notice dated 2nd of June, 1997 praying the court to set aside the order of 30th April, 1997 converting the security into its Naira equivalent. This motion was moved but the same was dismissed via a ruling of the court dated 17th June, 1997.

Being dissatisfied with the ruling of the 14th April, 1997 and that of 17th June, 1997, the appellants brought three (3) appeals before the Court of Appeal sitting in Kaduna (hereinafter in the rest of this judgment referred to as “the court below.”) Appeal number one is against the decision made by the trial court on a motion ex parte dated 14th April, 1997. Appeal number two on the other hand, is against the ruling of the same trial court on 21st March, 1997.

At the hearing of the appeal before the court below at which briefs were filed and exchanged, the appellants abandoned the second appeal while what was left for it to consider was the judgment on jurisdiction and conversion of the security into Naira.

In its judgment dated the 18th of January, 2000, the court below (per Omage, JCA and concurred in by Ayo Salami and Mahmud Mohammed, JJ.C.A.) held in respect of appeal number one thus:

“The order being an interlocutory one made by the court is not the proper occasion when evidence can be tendered in order to determine jurisdiction. The answer to appeal one of the appellant is no evidence before the court upon which the court may determine its jurisdiction or lack of it. In the result the appeal fails. It is dismissed.”

In respect of appeal No.3 the court below concluded its judgment by holding as follows:

“For the said sum of $100,000 dollars remain the property of the appellants until final judgment in the suit is delivered. The order of the Federal High Court, Kano made on 30th April, 1997 is unjust. It is hereby set aside. It is hereby directed that the case be continued before a Judge of the Federal High Court other than the Honourable Justice Abdullahi Mustapha. The appeal No.3 succeeds. There will be no order as to cost.”

The appellants being dissatisfied with the first part of the judgment of the court below has appealed to this court premised on the two grounds contained in a notice of appeal dated 30th September, 1998.

On behalf of the appellants the lone issue formulated for our determination in this appeal is:

“WHETHER THERE WAS MATERIAL UPON WHICH THE COURT OF APPEAL COULD DETERMINE THE ISSUE OF JURISDICTION.”

The only issue submitted at the respondent’s instance as arising for determination from the two grounds of appeal on the other hand and as contained in the notice of appeal filed, is:

“WHETHER HAVING REGARDS TO THE DOCUMENTS FILED AND CONFLICT IN THE AVERMENTS OF PARTIES AS FOUND, THE COURT OF APPEAL WAS RIGHT IN HOLDING THAT THERE IS NO EVIDENCE BEFORE THE COURT 0F WHICH THE COURT CAN DETERMINE ISSUE OF JURISDICTION.”

In reply to the respondent’s brief of argument dated 25th September, 2000 the appellants responded as follows:

PRELIMINARY OBSERVATION

The respondent at this point has submitted that there are some inherent factors in the appeal which cast serious doubts on the competency of the appeal itself, adding, that the two grounds of appeal raised by the appellants although labelled grounds of law, are in fact grounds of mixed law and fact. Accordingly, the appellant ought to have obtained leave of the court below or leave of the Supreme Court vide section 233(3) of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to shortly as “the Constitution”) before filing the said grounds. The respondent for its part, has submitted that it has long been well settled that the classification of grounds of appeal by learned counsel for the appellants as grounds of law or as grounds based on mixed law and fact or on fact, is not conclusive. Such that, he argued, the court concerned with the determination of the question must, in giving due consideration to the matter, ensure that the grounds of appeal in question are really grounds of law, grounds of mixed law and fact or of fact as the case may be. He cited in support the Supreme Court cases of Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484 at 491 and Amuda v. Adedokun (1994) 8 NWLR (Pt.360) 23; (1994) 9 SCNJ 59 at 64. It is the respondent’s next submission that having regards to the position of the law as summarised above and in order for this court to determine whether the appellants’ said two grounds of appeal are of law alone or mixed law and fact or of facts alone, it is desirable to x-ray for graphic visualization the two grounds of appeal with their particulars, to wit:

“GROUND 1

The Court of Appeal erred in law in holding that there was no evidence upon which the court could determine the issue of jurisdiction.

PARTICULARS OF ERROR

1. The writ of summons which was before the trial court clearly showed that the claim was based on the agreement dated 3rd February, 1997.
2. The said agreement was exhibited to the affidavit of the respondent which was relied on by the trial court.
3. The said agreement expressed that jurisdiction would be the United Kingdom or Equatorial Guinea.

GROUND 2

That the Court of Appeal erred in law in holding that there was a conflict in the evidence, which made it impossible for the court to determine jurisdiction.

PARTICULARS OF ERROR

1. The evidence before the court was the affidavit evidence of the respondent.
2. The appellants did not supply contrary evidence.
3. The appellants are deemed to have accepted the averments in the affidavit.
4. The only admissible evidence the appellants are deemed to have admitted in the aforesaid affidavit was the agreement of 3rd February, 1997 which ousted the jurisdiction of Nigerian courts.”

From the foregoing, the respondent respectfully submitted that it is apparent from the above grounds of appeal that it cannot by any stretch of imagination be argued that they involve issues of law alone in that at best, they qualify as grounds involving issues of mixed law and fact as decided in Amuda v.Adelodun (supra) wherein Adio, JSC’s obiter dicta therein were adopted and relied upon. The respondent there upon commended that case to this court to enable it arrive at the view that as ground 1 of the notice of appeal questions the truthfulness or otherwise of the Court of Appeal’s holding that there was no evidence upon which the court could determine issue of jurisdiction, which we are urged to hold, is a matter or issue based on fact. Ground 2 of the notice of appeal on the other hand, faulted the Court of Appeal’s holding that there were conflicts in the averments of parties which made it impossible for the court to determine jurisdiction which is also a question of fact or at best a question of mixed law and fact.

The respondent submitted finally on the above preliminary observation that it will urge this court at the hearing of the appeal to strike out the two grounds of appeal for being incompetent, thereby robbing this court of jurisdiction to entertain same. The respondent however ex abundanti cautela contends that it would canvass argument on the merit or otherwise of the appeal.

APPELLANTS’ RESPONSE TO RESPONDENT’S PRELIMINARY OBSERVATION:

In appellants’ response to the respondent’s contention in its brief of argument that their 2 grounds above are in fact grounds of mixed law and fact; in which case leave of this court or that of the court below is required before filing the appeal, the appellants’ submitted that both grounds of appeal are indeed grounds of law. Our attention was directed to the criteria laid down for ascertaining when a ground of appeal is that of law, mixed law and fact or of fact. In support thereof, the case of Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) page 484 at page 491 (per Eso, JSC) was cited, to wit:

“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly to grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine”. The case of Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) page 718 at pages 774 – 775 (Per Nnaemeka Agu, JSC) where this court laid down a general proposition) as a general guide when a ground of appeal is an error of law was called in aid as follows:

“When then is a ground of appeal that of law I shall deal with five particular classes, although by its very nature the categories of errors of law are not closed.

1. It is an error of law if the adjudicating tribunal took into Account some wrong criteria in reaching its conclusion or applied some wrong criteria in reaching its conclusion or applied some wrong standard or proof or, if although applying the correct criteria, it gave wrong weight to one or more of the relevant factors.
2. Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words or phrases and inference drawn therefrom are grounds of law.
3. Where a ground deals merely with a matter of inference even if it be an inference of fact, a ground framed on it is a ground of law; provided it is limited to admitted or proved facts for many years, it has been recognised that inferences to be drawn from a set of proved or undisputed facts, as distinct from primary facts, are matters upon which an appellate court is as competent as the court of trial.
4. Where a tribunal states the law on a point wrongly, it commits an error in law.
5. Lastly, I should mention one class of grounds of law which have the deceptive appearance of grounds of fact id est. Where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based. This is regarded as a ground of law, on the premises that in a jury trial there would have been no evidence to go to the jury…”

I have myself carefully examined the two grounds of appeal along with their particulars earlier set out above. Ground 1 complains about the Court of Appeal’s finding that the trial court had no evidence on which to determine whether or not it has jurisdiction. The real complaint of the ground, the appellant contends and as can be seen from the particulars, is that the lower court misunderstood the law as to what evidence a court needs to consider in determining the issue of jurisdiction. In other words, it is further contended, this ground of appeal requires this court to decide what materials should be available to the trial court when determining whether or not it has jurisdiction. In other words, in this ground of appeal this court has to decide what materials should be available to the trial court when determining whether or not it has jurisdiction. I am in full agreement with the appellants that it certainly does not require any evaluation of facts as it does not deal with sufficiency or otherwise of evidence given. It is for this reason that I associate myself with the appellants’ submission that Ground 1 is a ground of law. See Coker v. U.B.A. PLC (1997) 2 NWLR (Pt. 490) 641, 660 at 664.

Ground 2 complains about the Court of Appeal’s finding that there was a conflict of evidence. The appellants’ grouse is that the facts deposed to in the respondent’s affidavit evidence before the court were not contradicted by the appellants as there was no counter affidavit. The facts, it was therefore contended, were therefore considered admitted. What that amounted to, it is therefore argued, an error for the Court of Appeal to hold that there is conflict of evidence. This is the moreso that on a careful examination of the particulars attached to this ground, it would be seen that the complaint really borders on a misapplication of the law to the facts already proved or admitted. See Alagbe v. Abimbola & Ors. (1978) 2 SC 39. The Court of Appeal ignored this principle of law and thus treated a submission by learned counsel during hearing as evidence to find that there is a conflict of evidence. To so find is clearly, in my view, an error of law. I am therefore in agreement with the appellants’ submission that both grounds are of law because none of them requires any evaluation of facts. This is especially so as pleadings were yet to be filed in the trial court at the time. Moreover, the preliminary objection of the appellants (at pages 84 – 85 of records) which was argued by the parties at the trial court, and which gave rise to the appeal herein, had no affidavit in support of it. It was based purely on issues of law. Accordingly, I agree with the appellants that any appeal arising from such argument can only be a ground of law since there was no joinder of issues. It is for the foregoing reasons that I hold that the respondent’s arguments on this point be and are accordingly discountenanced.

APPELLANTS’ PRELIMINARY OBJECTION NOT IN COMPLIANCE WITH ORDER XXVII OF THE FEDERAL HIGH COURT RULES, 1990.

The respondent had argued that the preliminary objection raised by the appellants in the trial court (see pages 11 – 13 of its brief) did not comply with the provisions of Order XXVII of the Federal High Court Rules, Cap. 134, Laws of the Federation of Nigeria, 1990, in that there was no statement of claim in place. It contended that the filing of the statement of claim was a condition precedent to be fulfilled under the said Order XXVII before the appellants could bring their preliminary objection challenging the jurisdiction of the court. In answer to this objection, I agree with the appellants to the effect that the preliminary objection in question challenged the jurisdiction of the trial court to entertain the action. This is not a demurrer application in which case there should be a statement of claim in place, the facts of which the appellants would be required to admit before bringing their objection. I agree with the appellants’ submission that there is a difference between an objection to the jurisdiction and a demurrer. I also agree with them that an objection to the jurisdiction of the court can be raised at any time, even when there are no pleadings filed and that a party raising such an objection need not bring the application under any rule of court and that it can be brought under the inherent jurisdiction of the court. Thus, for this reason, once the objection to the jurisdiction of the court is raised, the court has inherent power to consider the application even if the only process of court that has been filed is the writ of summons and affidavits in support of an interlocutory application, as in the case in hand. Reliance is placed on this court’s decision in Attorney-General of Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645 at 674 which I unhesitatingly adopt, wherein the first two of three issues raised for this court’s determination were:

“1. Whether the Court of Appeal was right to have held that the jurisdiction of the High Court was not ousted in this matter which undoubtedly raised a chieftaincy question.

2. Whether the Court of Appeal gave its due consideration to the merit of the plaintiffs case and reached a connect decision on the point … ”

Were answered (Per Karibi-Whyte, JSC) to the following effect:

“There is no doubt the issue whether a plaintiff’s action is properly within jurisdiction or indeed justiciable can be determined even on the endorsement of the writ of summons, as to the capacity in which action was being brought, or against who action is brought. It may also be determined on the subject-matter endorsed on the writ of summons, if this is not actionable.”

The above proposition of the law was recently given approval by this court in Nigeria Deposit Insurance Corporation v. Central Bank of Nigeria & Anor. (2002) 7 NWLR (Pt.766) 272 where Uwaifo, JSC held as follows:

“To say, therefore as did the court below and as canvassed by the plaintiff/respondent before us in its brief of argument that objection to jurisdiction can only be taken after a statement of claim has been filed is a misconception. It depends on what materials are available. It could be taken on the basis of statement of claim… It could be taken on the basis of evidence received or by a motion supported by affidavit giving the facts upon which reliance is placed… But certainly it could be taken on the face of the writ of summons where appropriate. a name=’3491′ style=’background-color:#F0C000;’The tendency to equate demurrer with objection to jurisdiction could be misleading. It is a standing principle that in demurrer, the plaintiff must plead and it is upon that pleading that the defendant will contend that accepting all the facts pleaded to be true, the plaintiff has no cause of action, or, where appropriate, no locus standi… But as already shown, the issue of jurisdiction is not a matter of demurrer proceedings. It is much more fundamental than that and does not depend as such on what a plaintiff may plead as facts to prove the reliefs he seeks. What it involves is what will enable the plaintiff to seek a hearing in court over his grievance, and get it resolved because he is able to show that the court is empowered to entertain the subject-matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction.”

(Italicising is for emphasis)

In the instant case, the respondent filed a writ of summons and a motion asking for injunction supported by affidavit stating the facts upon which the injunction was sought. Upon these materials, the learned trial Judge granted an ex-parte injunction. Invariably, these facts would form the basis of the statement of claim and indeed they formed the basis of a statement of claim as depicted on pages 143 – 156 of the records.

This being the case, I agree with the appellants that their preliminary objection to the jurisdiction of the court was properly brought at the stage at which it was brought and that indeed, the trial court could have decided the issue without a statement of claim being filed. Having said this much, I will at this juncture proceed to consider the appeal proper based on the lone issue proffered by the appellants.

However, before I embark upon such consideration of the lone issue I have ruled to be pertinent in my consideration of this appeal, I wish first to advert to matters that have arisen by way of preliminaries and/or substantive law thus:

ARGUMENT

THE LONE ISSUE FOR DETERMINATION

The relevant portion of the judgment of the court below assailed is inter alia contained on pages 262 – 264 of the record. It reads:

“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 claim and evidence before the court, the lower court had jurisdiction.’

There is a claim before the court by the writ of summons filed by the respondent. It is here relevant to ask what evidence is before the court on which the court can determine the Issue of jurisdiction…………………….

In its preliminary objection the appellant had without stating so, applied under the provisions of Order 27 rule 1 of the Federal High Court Civil Procedure Rules; which enables the Federal High Court to dismiss a suit, if the allegation (sic) made by the plaintiff are admitted. In the preliminary objection made by the appellant, the respondent has clearly not admitted some crucial averments made by the appellant nor has the respondent admitted the appellant’s version of the agreement in its affidavit in support of the motion by which an unspecified nature of the order of court was obtained. An example of conflict in the averments made by both parties is the one on which the appellant denied that an oral agreement exists between the parties which the respondent said varied the written terms of the contract. The question must be asked, is such an issue to be resolved by affidavit evidence… It is settled practice that a trial court has no jurisdiction to resolve suo motu conflicting averments in affidavits or on conflicting affidavit evidence or prefer one version of deposition to the other without oral evidence…”

The court below, on this point then went ahead to conclude at page 264 of the record as follows:

“The answer to appeal one of the appellant is (sic) no evidence is before the court upon which the court may determine its jurisdiction or lack of it.”

It is quite clear that this decision of the court below was based on two premises, to wit:

1. That there was no evidence upon which the court could determine the issue of jurisdiction.
2. Assuming there was evidence before the court, then there was a conflict on the evidence to render it impossible to determine the issue of jurisdiction.

Territorial jurisdiction of a court can be determined by the following:

(a) Where the contract in question is made

(b) Where the contract is to be performed

(c) Where the defendant resides.

See Egbo v. Laguma (1988) 3 NWLR (Pt.80) 109 at 126- 127; I.K. Martins (Nig.) Ltd. v. UPL (1992) 1 NWLR (Pt. 217) 322 at 331 and Lanleyin v. Rufai (1959) SCNLR 475, (1959) 4 FSC 184.

It is common ground between the parties that the appellants were resident outside the jurisdiction of this court. For, as the learned trial Federal High Court Judge (per Abdullahi Mustapha) in his judgment dated 14th day of April, 1997 put it:

“… for a defendant to succeed in a civil matter that the forum of the court is not convenient for the determination of the issue raised on the writ of summons it must be shown:

“(a) That the defendant does not reside in or carry out business within the geographical area of the court;

(b) That the cause of action did not arise within the geographical area of the court; and

(c) That the contract is not to be performed within the geographical area of the court.

The onus is on the defendants to establish all these.”

It is also common ground that the contract was entered into in the United Kingdom (locus contractus).

The only issue between the parties was whether performance of the contract took place in Nigeria. It was the appellants’ contention in both courts that the place of performance of exhibit P02 (the aircraft lease agreement) was Malabo, Equatorial Guinea, (See page 47 of the record), that being the place where the aircraft was to be delivered for service’s to be rendered for the fulfilment of the respondent’s alleged contract with Air Span Aircharter Malabo. The learned trial Judge in his ruling at page 126 of the record found jurisdiction in Nigeria on the basis that there was a variation to exhibit P02 by an oral agreement to pass through Nigeria en route Equatorial Guinea. He therefore reasoned that since this deposition was not challenged, part of the performance of the contract took place in Nigeria. The paragraph containing the deposition is paragraph 4(L) of the respondent’s affidavit at page 38 of the Record, which states as follows:

“That it was agreed that the Aircraft shall be delivered to the applicant in Kano, Nigeria on the 12th of February, 1997 from where the applicants officials and the crew shall depart for Malabo.”

The court below adopted that the deposition in paragraph 4(L) (ibid) of the affidavit of the respondent hereinbefore stated, raises a conflict with the written agreement thus rendering it impossible to determine the issue of jurisdiction (see pages 262 – 264 of the record) hereinbefore quoted in extenso.

The appellants thereupon submitted, and I am inclined to their view, that the court below was in error in their finding that there was a conflict in the evidence. I am in entire agreement with the appellants that the deposition in paragraph 4(L) of the affidavit upon which both courts placed heavy reliance is irrelevant for the following reasons:

Firstly, the locus solutionis (place of performance) of the contract exhibit P02, which forms the basis of the action, is Malabo Equatorial Guinea. The averment in paragraph 4(L) of the respondent’s affidavit at page 38 of the record amounts to a stopover on the way to the place of performance of the contract. The place of performance of the contract is the place of resolution. The evidence on record points clearly and unmistakably to that place as Equatorial Guinea. (See exhibit P03 at page 48 of the record and paragraph 5 (00) at page 41 of the record). Indeed, the aircraft arrived in Kano, Nigeria on the 12th February, 1997 and departed on the same day to Equatorial Guinea (see exhibit P03 at page 49 of the record). Thus, the alleged agreement for the aircraft to pass through Nigeria is, in my opinion, irrelevant as regards performance. As the issue was not placed before the court below and none of the parties was resident in Nigeria, that court went on a frolic of its own to argue and determine the point suo motu.

Secondly, the deposition in paragraph 4(L) is inadmissible in law. Section 132 of the Evidence Act, Cap. 112, LFN, 1990 states that the only admissible evidence of a contract is the contract itself. The section however recognises exceptions, which the respondent sought to come under and upon which the learned trial Judge and the court below based their decisions. The exceptions are as follows:

Section 132(b) (ibid) provides that the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them. Section 132(c) of the Evidence Act states as follows:

“The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property.”

It is quite clear that in order to fall within the exceptions the respondent would have to aver one of these exceptions, that is:

(i) Separate oral agreement constituting a condition precedent to the validity of exhibit P02.

(ii) Subsequent oral agreement to modify exhibit P02.

The respondent’s averment in paragraph 4(L) never alleged that the agreement was oral, conditional, separate, or subsequent. This is essential to establishing a case within the exceptions.

The court below in the case of Mbonu v. Nwoti (1991) 7 NWLR (Pt. 206) 737 at page 748 per Uwaifo, JCA as he then was, observed as follows:

“The appellant, in effect, attempted to contradict, alter or vary by oral evidence a transaction or grant in writing. In this regard, attention must be drawn to section 131 of the Evidence Act.”

“I think it is plain from the rules of pleadings and of evidence in support that any such separate or subsequent agreement must be distinctly pleaded and specifically proved.”

(Italicising is by me.)

It is the appellants’ submission that the averment in paragraph 4(L) of the respondent’s affidavit does not raise the facts necessary to sustain the exception. The said averment is, in my view, inadmissible in law having regard to the provisions of Section 132 of the Evidence Act (ibid). In consequence, there is no evidence before the court below regarding a variation. A fortiori, no conflict could have arisen. This, in my opinion, stems from the proposition of law that evidence cannot be given of a matter not contained in the party’s pleading. See Kalu Njoku & Ors. v. Ukwu Eme & Ors. (1973) 5 SC 293. Furthermore, it is desirable that the issues joined in a civil matter be properly ascertainable. See Pan Asian African Co. Ltd. v. National Insurance Corporation of Nigeria (NICON) (1982) 9 SC 1 at 48 – 49. Indeed, as it is now well settled that parties are bound by their pleadings and a plaintiff will be held to a case he has put forward in his writ of summons and pleadings vide:

(a) Jonah Kalio & Ors. v. Chief M.D. Kalio (1975) 2 SC 15 at 21;

(b) Etowa Ellang & Ors. v. Fidelis lkor Adu (1981) 11 – 12 SC 25 at 36;

(c) Edward Egonu & Ors. v. Madam E. Egonu & Ors. (1978) 11 – 12 SC 111 at 133;

(d) Chief Bola Ige v. Dr. Omololu Olunloyo (1984) SCNLR 158 at 162;

(e) Nkanu v. Onun (1977) 5 SC 13 at 22; and

(f) Ransome-Kuti v. Attorney-General, Federation (1985) 2 NWLR (Pt. 6) 211.

I agree with the appellants that the respondent cannot be awarded a relief beyond that which it claimed in its writ of summons. See Doma v. Ogiri (1997) 1 NWLR (Pt. 481) at page 322. A fortiori, the agreement upon which the claim is founded i.e. that of 3rd February, 1997 – Exhibit PO.2. See also the writ of summons at page 31 of the record.

Furthermore, as the Court of Appeal held in the case of Dr. Kunle Balogun v. Wema Bank Plc (2000) 4 NWLR (Pt. 654) 652 at 659:

“When a court is asked upon an interlocutory application to make an order, the court must satisfy itself that it has the power to make, at the conclusion of hearing, the same order it is asked to make upon an interlocutory application.”

Similarly, it will be wrong for a court to assume jurisdiction on the basis of an agreement, which is extraneous to the relief sought before a court.

Finally, I agree with the appellants’ submission that the court below erred in law in holding that there was a conflict in the averments made by both parties. The only material before the court was the affidavit deposed to by the respondent. There was no counter-affidavit filed by the appellants.

There could therefore have been no conflict, apparent or latent between the parties.

The conflict, if any, was between the respondent’s affidavit in support of its ex parte application dated 21st March, 1997 (see page 4 of the record) and the affidavit in support of its motion on notice dated 25th of March, 1997 (see page 35 of the record).

In the affidavit in support of the ex parte application, the respondent simply deposed to exhibit “P02,” the Aircraft Lease Agreement entered into on the’ 3rd of February, 1997, and made no mention of the variation oral or written (see paragraph 4(f) at page 6 of the record). In the affidavit in support of the motion on notice, the alleged variation was suddenly raised (see paragraph 4(L) at page 38 of the record).

In the case of Mr. Mike Momah v. Vab Petroleum Inc. (2000) 4 NWLR (Pt. 654) 534 this court stated the applicable principles of law regarding conflicting affidavit evidence as follows:

“Where a matter is being tried on affidavit evidence and the court is confronted with conflicting or contradictory evidence relied on by the parties on a material issue before the court, the court cannot resolve such conflict by evaluating the conflicting evidence in order to achieve the resolution of the conflict – Falobi v. Falobi (1976) 9 – 10 SC 1. In the case in hand, the contradictions or conflicts in affidavit evidence did not relate to the affidavit evidence filed by the appellant on the one hand, and that filed by the respondent on the other; rather, the contradiction arose only in the appellant’s averments in his numerous affidavits. Therefore the age-long principle of fielding witnesses to furnish oral evidence for the resolution of the contradictions between the two separate sets of evidence did not arise. Rather, it was self-evident from the judgment of the lower court that the contradictions alluded to were those that arose from the inconsistencies in the depositions in the appellant’s own affidavits.” (See pages 556 – 557 of the record).

This court further stated at page 557 more succinctly that:

“Where a party’s case is plagued by inconsistencies or contradictions, there is no obligation on the court seized of the matter to arrange for oral evidence to be called for the purposes of resolving the contradictions. In such circumstances, the onus is on the party confronted with its self-created contradictions to fully and properly explain away the contradictions to the satisfaction of the court. Failure to do so is bound to leave an indelible dent on the appellant’s case. It is not open to the court to enter into the arena of judicial conflict between the parties in order to resolve the contradictions within a party’s own affidavit evidence.”

In conclusion, I hold the view that the jurisdiction can only be founded in England or Equatorial Guinea, moreso that none of the parties to this case is resident in Nigeria. Hence, the decision of the court below to the effect that there was no evidence to determine the issue of jurisdiction or that there was conflict on the evidence, was based on an irrelevant consideration and thus has no basis and cannot be sustained, I am also equally of the view that on the materials before the trial Federal High Court, that it certainly ought to have declined jurisdiction. On its own part, the court below was clearly in error, in my opinion, when it held that there was no evidence upon which the issue of the court’s jurisdiction could be determined. Indeed, there was abundant evidence emanating from the affidavit evidence it (the respondent) supplied, to determine the Issue.

For all I have been saying, I find merit in this appeal and I accordingly allow it. The plaintiff/respondent’s claim be and is hereby struck out for want of jurisdiction in the trial court. The respondent shall pay costs of N 10,000.00 to the appellants.

SC.112/2000