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

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Presidency and of the then Federal Minister of Aviation and with the assistance of the support of officers of the Nigerian Police Force invaded the business premises of the Appellant using earth moving equipment with bulldozers and raised to the ground totally and destroyed the business premises of the Appellant in spite of valid and existing orders of the Lagos High Court, and also refused to obey the orders of the Lagos High Court to restore the property to its previous condition.

All that need to be added is, that, the procedure adopted by Appellant, seeking the enforcement of its fundamental rights in the case is therefore, correct and contemplated procedure intended to be provided and has been provided to all citizens expropriated in respect of their property by the Government either directly or through its agent. The learned trial judge was therefore wrong in holding that procedure by way of application.

From the ten (10) grounds of appeal contained on pages 817 – 822 of the records, the Appellant formulated the following two issues for the determination of this appeal, and they are as follows:
1) Having at an earlier inter parties hearing

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of this action determined the issue whether her Court, the Lagos High Court could hear and determine the claimant/Appellant’s application for the enforcement of its fundamental rights now under appeal was the High Court entitled at the conclusion to hold that procedure by which the application was initiated was wrong and had to be determined by a proceedings initiated by writ of summons.
2) Whether the learned trial judge was wrong in not determining the issues before her on the basis of the affidavit evidence before her, but by holding that, the action be tried with pleadings and oral evidence.

On the other hand, the 1st Respondent also formulated two (2) issues for the determination of this appeal as follows:
1) Whether this case being one arising from the lease/contract freely entered into between the 1st Respondent a lessor and the Appellant as lessee can be determined simply as a fundamental right without consideration of the rights of the parties under the lease/contract.
2) Whether arising from 3.0.1 above, this case has been properly brought under the fundamental rights (enforcement procedure) rights and if not properly brought

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under, whether the Honourable trial judge was right in arriving at its decision, that this action ought not to have been commenced under fundamental right (Enforcement Procedure) rules but by writ of summons and statement of claim.

While the 2nd Respondent proposed a sole issue for the determination of the apply as follows:
“Whether the Appellant’s/Applicant’s motion and affidavit in support disclosed reasonable cause of action against the 2nd Respondent.”

After a careful consideration of the issues proposed by the parties to this appeal, the two (2) issues proposed by the learned counsel to the 1st Respondent, is adopted by this Court in the determination of this appeal. The issues No. 1 and 2 will be argued together.

ISSUES NO.1 AND 2
The learned counsel for the Appellant, Chief G.O.K. Ajayi SAN (of blessed memory) had contended that, the learned trial judge had when the application now under appeal first came before her by way of ex-parte motion as required by the rules, having read the affidavit placed before her, came to the conclusion that, it was proper care to come under fundamental rights procedure rules and therefore

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proceeded to make interim orders ex-parte and at same time, directing that, notice of the application be given to the Respondents. When after service of necessary papers on the Respondents alongside the interim order made the 1st Respondent filed a notice of preliminary objection (pages 104 to 105) to the jurisdiction as well as procedure, and the learned trial judge over ruled the objection at pages 135 – 142 of the record and held that, she would grant the Appellant’s audience and hear our application on the merit. The 1st Respondent thereafter filed a notice of appeal and an application for stay of proceedings pending appeal. The learned trial judge also, over ruled the application for stay of proceedings pending appeal. The 1st Respondent filed a motion to set aside the ex-parte order of the Iearned trial judge but he eventually withdrew the application. The result was that, the orders made by the learned trial judge were still pending.

The learned senior counsel for the Appellant submitted further that, the learned trial judge having now ruled in the same proceedings, that, the procedure laid down by the Fundamental Rights Enforcement Procedure

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Rules, which had been followed in this case, was correct in her ruling on the 14th of July, 2006 at pages 135 – 142 of record, has thereby become forever bound by the said determination and her subsequent purported determination to the contrary is incompetent and void. LAWAL VS DAWODU (1972) 1 ANLR 702. If the Court accepts the Appellant’s submissions that, the learned trial judge was bound by her earlier decision as to the correctness of the procedure that was adopted by the Court below, then the Court must proceed to give judgment upon the basis of the proven facts both as to liability and as to damages and consequential reliefs. This Court should make the order which the learned trial judge should have made, which are, that, the 2nd Respondent being representative of the Federal Government of Nigeria, be liable to pay the damage set in the affidavit and other business of the Appellant to erect the hanger demolished and to be restrained from committing further acts of trespass on the land until the expiration of the Appellant’s lease and possessory rights.

Learned counsel to the Appellant further submitted that, the learned trial judge was wrong

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holding that the determination of the issues before her cannot be determined by affidavit evidence, but by holding that, the action be tried with pleadings and oral evidence. The learned trial judge should have proceeded to give judgment upon the basis of the affidavit adduced including the uncontradicted affidavit evidence on the record which shows the total amount claimed representing damages suffered by the Appellant as a result of its Fundamental Rights, the sum of N90 Billion Naira being special, general and exemplary damages. This Court, the Court of Appeal, has no alternative but to give judgment accordingly, based upon the uncontradicted affidavit evidence of damages proved in the Court below. We urge the Court to set aside the judgment of the lower Court.

In reply to the submission above, the learned counsel for the 1st Respondent contended that, this case was not commenced by writ at the lower Court, but under the Fundamental Rights (Enforcement Procedure) Rules for the enforcement of the Appellant’s rights under Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria 1999. The case made out by the Appellant at the lower Court

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falls outside the provisions of Sections 43 and 44 of the Constitution, and that, it is therefore, improper to have been brought before the learned trial judge under the said rules, being an issue based on, and arising from a lease/contract. Section 44 (2) [e) of the 1999 Constitution, the right to acquire and own immovable property and be compensated for any acquisition there from under the Constitution shall not apply in cases relating to “Leases, Tenancies, Mortgages, Charges, Bills of sales or any rights or obligation arising out of contracts. The Appellant did not throughout the hearing of the suit at the lower Court, deny or is not denying the existence of the lease contract with the 1st Respondent, or that, it was involuntarily entered into by it or procured under duress. See GRACE JACK VS UNIVERSITY OF MAKURDI (2004) 14 WRN (Pt. 91) 95; SEA TRUCKS NIG LTD VS ANIGBORO (2001) 2 NWLR (Pt. 696) 519 at 163 ratios 3, 4 and 5. The principal relief of the Appellant is not one for determination of compensation for acquisition of the Appellant’s supposed property. The General Aggravated and Exemplary Damages sought are based on trespass, which can only be

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determined by a consideration of the rights of the parties under the Deed of Lease Exhibit CCA1. It follows therefore that, the principal relief carefully disguised by the Appellant in this action was for a specific performance of the lease, which has been determined by the 1st Respondent. This situation was what the Supreme Court ordered against in SEA TRUCK case (supra) in ratio 4. This case cannot be determined until a consideration of the rights of the parties under the Deed of Lease/Contract is determined.

Learned counsel for the 1st Respondent, further submitted that, the Appellant did not establish any entitlement to damages under any head either General, Aggravated, and or Exemplary Damages. The case of LAWAL Vs DAWODU (supra) cited by the Appellant can be distinguished from the instant case, as the facts are not the same with the instant case,

The learned counsel for the 2nd Respondent had contended that, with respect to the present suit, the 2nd Respondent ought not to been joined in this suit as there is no evidence in the Appellant/Applicant’s motion on notice and affidavit in support filed at the Court of first instance to show that

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there was privity of contract between the Appellant and the 2nd Respondent. It is important to note that, the Applicant did not show by way of documents, order or directive issued by the 2nd Respondent instructing the 1st Respondent to carry out the said recovery of the land. Furthermore, the Appellant did not show by way of averment that, any of the staff or law enforcement agent attached to the 2nd respondent participated in the alleged act of forceful recovery of possessions of the said land. To that extent, the Appellant/Applicant’s averment in Paragraph 11, of the statement only amounts to “HEARSAY” based on this, the Applicant’s motion disclosed no cause of action against the 2nd Respondent. The Applicant is not entitled to any damages against the 2nd Respondent. See CAPITAL BANCORP LTD VS SHELTER SAVINGS AND LOANS LTD & ANOR (2007) 3 NWLR (Pt. 1020) 16; LABOYE VS OTUBO (2001) 2 NWLR (Pt. 712) 256; ATTORNEY GENERAL OF FEDERATION VS ATTORNEY GENERAL OF ABIA STATE (2001) 11 NWLR (Pt. 725) 659. Court should dismiss this appeal.

On the part of this Court, the submissions above are carefully examined. The first step in dealing with this appeal is to

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examine the applicable procedure for the enforcement of Fundamental Rights. The current law on the Enforcement of Fundamental Rights, is covered by Order 11 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 under Chapters iv of the 1999 Constitution. The action is governed by the Fundamental Rights (Enforcement Procedure) Rules 1979. The process of Enforcement of Fundamental Rights is commenced by an application made to the Court, first for leave, and upon leave being granted, by notice of motion or by originating summons for redress. No oral evidence is called. The application is heard on the affidavit (which the 1979 Rules) and (a statement which is provided for by the 2009 Rules) in support of the application and the affidavits, then and now statement, which every party the application proposes to use at the hearing. The affidavit or the statement constitute the evidence. In the present appeal, the Appellant as the Applicant commenced the action as provided for by the Rules. When, however, the necessary papers were served on the Respondents alongside the interim order made, the 1st Respondent filed a notice of preliminary objection

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to the jurisdiction as well as procedure. From the record, the trial judge overruled the objection and held, she would grant the Appellant’s audience and hear our application on the merit. The 1st Respondent filed a notice of appeal and an application for stay of proceedings, pending appeal. The learned trial judge also over ruled the application for proceedings pending appeal. At the conclusion of trial, the learned trial judge has not withstanding, having ruled that, the procedure by way of an application for the enforcement of the Appellant Fundamental Rights was valid and proper, turned around in her final judgment to hold that, the procedure adopted by the Appellant was wrong and should have commence the action by writ of summons. The appeal is against this decision, as the trial Court was bound by the earlier ruling made.

The 1st Respondent on the other hand maintained that, the issue of Enforcement of Fundamental Rights by the Appellant was an ancillary claim. The main claim of the Appellant, throughout the hearing of the suit at the lower Court was for the lease contract with the 1st Respondent, and the Appellant has not shown that, the said

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lease contract was involuntarily entered into by it, or procured under duress. The claim for breach of contract cannot be prosecuted under the Fundamental Rights (Enforcement Procedure) Rules.

Looking at reliefs sought by the Appellant in the first instance at the Court of trial, was for General Aggravated and Exemplary Damages for forcible entry and trespass and violation of the Appellants Fundamental Rights to the property in respect to its lease hold property situate at General Airport Terminal 11, Murtala Muhammed International Airport, and an injunction restraining the Respondents, their servants and or agents from committing further acts of trespass on the disputed land. It is clear without question from the relief sought by the Appellant at the Court of trial, that, Fundamental Right Enforcement was not the main claim before that Court. The main claim, no doubt, is the contract of the lease hold agreement between the Appellant and the 1st Respondent. The Enforcement of Fundamental Rights by the Appellant is certainly an ancillary claim to main claim. The Supreme Court had set out a guide in this respect. See SEA TRUCKS LSTD VS ANIGBORO (2001) 1

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S.C. (Pt. 1) 45; Karibi-Whyte JSC as follows:
”The correct approach in a claim for the Enforcement of Fundamental Rights is to examine the relief sought, the grounds for such relief and the facts relied upon. Where the facts relied upon disclose a breach of the Fundamental Right of the Applicant as the basis of the claim, there is here a redress through the Fundamental Rights (Enforcement Procedure) Rules, 1979 (now the Fundamental Right (Enforcement Procedures) Rules 2009. However, where the alleged breach of right is ancillary or incidental to the main grievance or complaint, it is incompetent to proceed under the rules. This is because, the right, if any, violated, is not synonymous with the substantive claim which is the subject matter of the action. Enforcement of the right, per se cannot resolve the substantive claim which is in any case different.”
The learned trial Court, going by what the Supreme Court said above, committed no wrong. Yes, the Court had ruled that, the Appellant followed and met the procedure by way of an application for Enforcement of Fundamental Rights. After both parties were heard in the matter, the trial Court was right

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to turn around in her judgment and to hold that, procedure adopted by the Appellant was wrong and should commence action by writ of summons. It is very clear that, at the point of the ruling over the preliminary objection of the 1st Respondent, the trial Court was not seize of the facts of the case, until when both parties were heard. It cannot be law on this subject to say that, the trial Court was bound by her earlier ruling. When infact, the facts in the proceedings had revealed the Enforcement of the Fundamental Right as only ancillary to the main claim before the Court. At the time of the ruling, the trial Court had no jurisdiction to proceed on that Fundamental Right application. Having proceeded on such futility, it had a second chance to correct itself which it did, it make the parties commence the action by writ of summons. The Supreme Court has established guide on allegation of breach of Fundamental Rights which are merely ancillary to the main claim, as stated in Sea Trucks case supra. For emphasis only, this is what the Supreme Court said in case of W.A.E.C. VS AKINKUNMI (2008) 4 S.C. 1.
“The settled principle is in ascertaining the

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Justiceability or competent of a suit commenced by way of an application under the Fundamental Rights (Enforcement Procedure) Rules 1979, the Court must ensure that, the enforcement of the Fundamental Rights under Chapter iv of the Constitution is the main claim and not an ancillary claim. Where the main or principal claim is not the enforcement of a Fundamental Rights, the jurisdiction of the Court cannot be properly invoked and the action will be liable to be struck out for incompetence.”
The Supreme Court maintained the same position in the cases of the GOVERNOR OF KOGI STATE VS YAKUBU (2001) 3 S.C. 66; W.A.E.C. VS ADEYANJU (2008) 4 S.C. 27; TUKUR VS GOVT OF GONGOLA STATE (1989) 9 S.C. 1; AMALE VS SOKOTO LOCAL GOVT & 2 ORS (2012) 1 S.C, (PT. IV) 45; GAFAR VS THE GOVT. OF KWARA STATE & 2 ORS (2007) 1-2 S.C. 154; UNIVERSITY OF ILORIN VS OLUWADARE (2006) 6-7 S,C. 154 at 163.

On the whole therefore, the learned trial Court was right to revert the parties, to go and file writ of summons to be properly heard, and each rights of the parties to be fully ventilated and protected. The case of the 2nd Respondent, is equally affected by the order of

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the learned trial Court. The determination of what constitute a cause of action against the 2nd Respondent cannot be effectively or effectually determined at this stage of trial, until the writ of summons is filed, and the action heard on its merit.

In the final analysis, having resolved the two (2) issues in the appeal against the Appellant, the appeal is devoid of merit, and it is hereby dismissed. The judgment of the High Court of Lagos State sitting at Ikeja Judicial Division, coram Honourable Justice T. A. O. Oyekan-Abdullai, in suit No. M/178/06, delivered on the 20th day of May, 2009 is hereby affirmed by this Court.

Parties to bear their own costs.

Other Citations: (2016)LCN/8618(CA)