Rumugu Air and Space Nigeria Limited V. Federal Airports Authority of Nigeria & Anor (2016)

LawGlobal-Hub Lead Judgment Report

SIDI DAUDA BAGE, J.C.A. 

 This is an appeal against the decision of the Honourable Justice T.A.O. Oyekan Abdullai sitting at the Lagos High Court delivered on the 20th day of May 2009 upon an application by the Appellant/Applicant for the enforcement of its fundamental right to acquire and own moveable immovable property, guaranteed by Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria 1999 wherein judgment was given against the Appellant refusing its prayers, as the action ought not to have been commenced under the Fundamental Rights (Enforcement Procedure) Rules, but by writ of summons and statement of claim to enable parties state their respective claims.

The Appellant at the lower Court filed a motion on notice dated 19th May 2006 pursuant to the provisions of Section 46 of the Constitution of the Federal Republic of Nigeria 1999 and the Fundamental Rights (Enforcement Procedure) Rules 1979 for the enforcement of the Appellant’s Fundamental Rights to acquire and own immovable property anywhere in Nigeria, guaranteed by Sections 43 and 44 of the Constitution of the Federal

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Republic of Nigeria 1999.

The reliefs sought by the Applicant are for:
i. N96,046,218.00 (Ninety Six Million, Forty Six Thousand, Two Hundred and Eighteen Naira) general aggravated and exemplary damages for forcible entry and trespass and violation of Appellant’s Fundamental Rights to the property in respect to its leasehold property situate at General Airport Terminal II, Murtala Muhammed International Airport, guaranteed by Section 43 and 44 of the Constitution of the Federal Republic of Nigeria 1999.
ii. An injunction restraining the Respondents, their servants and, or agents from committing further acts of trespass on the disputed land.
iii. An order restraining the Respondents, their servants and or agents from preventing the Appellant/Applicant, its customers and clients from entering upon the said disputed land and issuing to the Appellant/Applicant, its servants, agents and customers all necessary permits to enter and leave the disputed property.
iv. A mandatory order directing the Respondents to restore to the said disputed property, all portakabins, office units and other installations of the

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Appellant/Applicant’s customers and agents removed or caused by the Appellant/Applicant to be removed from the said disputed property.

The 1st Respondent’s case is s follows:
i. That the originating processes in this suit were properly served on the 1st Respondent.
ii. That the 1st Respondent has since it conditional appearance on the 12th June, 2006 appeared in protest and continues to appear in protest to the action.
iii. That the Appellant/Applicant was a lessee of the 1st Respondent’s Airport land and property at the Murtala Muhammed Airport, Ikeja Lagos by virtue of a Deed of Lease dated 28th day of September, 1995, registered as No. 89 at page 89 in Volume 2012 in the Lands Registry Office at Lagos.
iv. That according to the terms of the Lease of Agreement Title to the Land composed therein at all times remained vested in the 1st Respondent Lessor, and any and all developments therein revert to the 1st Respondent upon the expiration of the term granted or upon determination of the deed.
v. That the terms of the said Deed of Lease also provided for determination of the lease upon non fulfillment of lease payments and breach

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of other covenants regarding development and use of the leased property.
vi. That due to the Appellant/Applicant’s breach of express terms/provisions of the lease, same was determined by notice dated 21st February, 1997 consequent upon which the Appellant/Applicant filed suit No. ID/3369/99 against the Respondent.
vii. That apart from the breach of the express provisions of the lease as to development and use thereof, the Appellant/Applicant also breached the covenant for lease payments and other outgoings by refusing to pay ground rent, concession fees, electricity bills and outgoings to the 1st Respondent from 1995 to date, which indebtedness stood as at 2004 to the sum of N36,410,592.08 (Thirty Six Million, Four Hundred and Ten Thousand, Five Hundred and Ninety Two Naira, Eight Kobo).
viii. That it was in the face of these breaches by the Appellant/Applicant that the 1st Respondent did in the exercise of its right to re-entry and right to immediate procession under the deed of lease took over its property from the Appellant/Applicant after serving notice on the 13th April,2006.
ix. That this suit is an abuse of process of the Court as

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the Appellant/Applicant is still pursuing the same claim on the same property against the 1st Respondent in the suit No. LD/3369 /99 which suit it had properly commenced by writ of summons.
x. That the steps taken by the 1st Respondent pursuant to re-entry were taken before the orders made by this Honourable Court on the 18th May and 14th July, 2006.

The evidence which the Appellant had adduced as its right and the quantum of that right is as to possession and lawful use for commercial and other purposes from the 14th of April, 2006 to the 31st of December, 2014, the date on which the Appellant’s lease still had to run. It is therefore the Appellant’s case that, it had succeed in establishing in these proceedings that:
i. It acquired a leasehold interest in the property situate at Murtala Mohammed International Airport from its legal owner, the Federal Airports Authority of Nigeria for a term of 20 years commencing from the 1st day of January, 1995.
ii. The legal term of years is still valid and subsisting.
iii. On the 14th day of April, 2006, the 1st Respondent purporting to be acting under the authority and directive of the