Egypt Air V. Alhaji Umaru Ta’ambu Abdullahi (1997)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

This is an appeal against the judgment of the Kano State High Court of Justice sitting at Kano and delivered by Patricia Mahmud J. on 4/5/95. At the trial court the respondent who was the plaintiff took out a writ of summons dated 25/10/90 and claimed the total sum of N378,024.00 from the appellant which was the defendant being the total value of textiles materials and threads entrusted by the plaintiff to the defendant for freight by air from Cairo in Egypt to Kano in Nigeria and general damages.

The parties exchanged pleadings before hearing commenced before Mahmud J. The plaintiff was the only witness who testified in support of his claims while the defendant called 3 witnesses who testified in support of its defence. At the end of the trial, the learned trial Judge found for the plaintiff and granted part of his claims as follows:-

“I find from this case that the plaintiff has proved his case on a balance of probabilities against the defendant, the defence of illegality and frustrations having failed. These defences were not raised in respect of the 900 dozens of thread. By implication the defendant has admitted this head of claim and was only raising the defence of frustration and illegality on the textiles materials. I also find that the defendant has not discharged the burden of proving that the contract was either illegal or frustrated. I find also that the plaintiff failed to lead evidence upon which I can assess general damages in his favour. The evidence as to the cost of the thread and textile materials as well as the equivalent in Naira given by the plaintiff was unchallenged and uncontradicted. I am therefore left with no option but to accept and act on them.. Accordingly I hereby enter judgment in favour of the plaintiff against the defendant in the sum of N252,016.00.”

The defendant now appellant which was not happy with this judgment has appealed against it to this court. The Notice of Appeal contains the following 3 grounds of appeal.

“1. The learned trial Judge erred in law in refusing to apply the provisions of S.6 of Schedule 4 to the Customs, Excise Tariff etc. (Consolidation) Act Cap. 88 Laws of the Federation of Nigeria 1990 in her judgment to thereby hold that the contract could not be performed in Nigeria.

Particulars:

(a) The plaintiff is a Nigerian and the goods to be carried under the contract between the plaintiff and the defendant was to be delivered in Nigeria.

(b) The contract would therefore be subject to all relevant Nigerian Laws including the aforementioned Customs, Excise Tariffs etc (Consolidation) Act which prohibits the importation of the goods the subject matter of the contract.

2. The learned trial Judge misdirected herself in awarding N150,000.00 cost of the textile materials as claimed by the plaintiff when the textile materials were by the evidence adduced prohibited from being exported from Egypt under Egyptian Law and the learned trial Judge found in favour of this state of the Egyptian Law in respect of the textile materials as prohibited for exportation from Egypt.
3. The lower court lacked jurisdiction to hear and determine the suit since the coming into operation of the Constitution (Suspension and Modification Decree) No. 107 of 1993.

Particulars

(a) The subject matter of the suit before the lower court in the carriage by aircraft which is aviation.

(b) Jurisdiction of State High Court in aviation matters has been ousted by S. 203 of the aforementioned Decree 107 of 1993 which came into operation on 17th November, 1993.

(c) The judgment in this case was given on 4th May, 1995 and was therefore given without jurisdiction and is null and void and of no effect whatsoever.”

In accordance with the rules of this court the appellant filed its brief of argument and formulated the following 2 issues from the 3 grounds of appeal.