Lignes Aeriennes Congolaises (L. A. C.) V. Air Atlantic Nigeria Limited (A. A. N.) (2005)

LawGlobal-Hub Lead Judgment Report

GARBA, J.C.A.

This is against the ruling of the Federal High Court, Lagos in suit No. FHC/L/CS/1155/98 delivered on the 20th September, 1999 which, dismissed the appellant’s application for striking out the suit on ground of lack of jurisdiction on the part of that court to entertain it. Put briefly, the parties in this appeal had entered into an aircraft lease agreement which by Article 7 thereof, was to be governed by the Congolese Positive Law. The parties under Article 8 of the agreement chose residence at their respective head offices for any usual notifications.

The appellant is an Airline and the national carrier of Congo with its head office at No. 4 Avenue du Port Kinshasa/Gombe, Democratic Republic of Congo and an operational office in Lagos. The respondent as the name shows is a Nigerian Company with its head office at 4B Mobolaji Bank Anthony Way, Ikeja, and Lagos Nigeria.

As plaintiff in the lower court, the respondent claimed inter alia, the sum of U$169,794 (One hundred and Sixty-Nine Thousand, Seven hundred and Ninety-four United States Dollars), being consideration for the lease of Cargo Aircrafts to the defendant/appellant. The civil summons as well as all other processes in the suit were addressed and served at the Murtala Mohammed International Airport, Ikeja, Lagos, the operational office of the appellant.

In response to the processes served on it in Lagos, the appellant filed a preliminary objection to the claims by respondent on the ground that by their lease agreement, the parties had chosen the Congolese law to apply to their relationship and so the lower court lacked jurisdiction to entertain the suit.

Being dissatisfied with the dismissal of its preliminary objection the appellant filed a notice of appeal containing three grounds as follows:

3. Grounds of Appeal

Ground 1:

The learned trial Judge erred in law, when he held that the provisions of Articles 7 and 8 of exhibit OL2 as well as other provisions in the same exhibit brought the agreement (i.e. exhibit OL2) within the contemplation of the provisions of section 20 of the Admiralty Jurisdiction Act, 1991.

Particulars:

Exhibit OL2 is titled Aircraft Lease Agreement. Article 7 thereof titled: Legislation and Jurisdiction, provides as follows:

The present agreement shall be governed by Congolese Positive Law. Any dispute relating to the execution, the interpretation and/or the termination of the present agreement shall be settled in a friendly way between the parties. If they fail to do so, the dispute shall be referred to arbitration by both Presidents of Kinshasa and Lagos Bars.

Article 8: Choice of Residence provides:

For any usual notification: the parties have chosen residence at their respective head offices as mentioned in the preamble to the present agreement.

In the preamble the plaintiff/respondent, Air Atlantic Nigeria Limited (AAN) has its Head Office at 4B Mobolaji Bank Anthony Way, lkeja, Lagos, Nigeria, and the defendant/appellant, Lignes Aeriennes Congolaises (LAC) has its Head Office at 4, Avenue Du Port Kinshasa/Gombe, Democratic Republic of Congo. The agreement was made at Kinshasa, DRC, on April 30th, 1998.