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Regd. Trustees of Airline Operators of Nigeria V. NAMA (2014) CLR 2(n) (SC)

Judgement delivered on February 28, 2014

Brief

  • Amendment
  • Civil Litigation
  • Non-Existing Person
  • Juristic Or Legal Personality
  • Appeal
  • Misnomer
  • Interpretation Of Statute
  • Objection
  • Section 7 (i) (r) of the Nigeria Airspace Management Agency Act.
  • Section 11(b) (iv) of the Nigeria Airspace Management Agency Act
  • Section 7 (1) (a) - (q) of the Nigeria Airspace Management Agency Act.
  • Section 11 of the Nigeria Airspace Management Agency Act.
  • Order 3 Rule 15 of the Court of Appeal Rules 2002
  • Order 6 Rule 9(5) of the Court of Appeal Rules 2002

Facts

By an originating summons dated 11th January 2002, Airline Operators of Nigeria commenced an action against the Respondent herein and three others. It set out two questions for determination by the trial court as follows:

  • i
    Whether having regard to the provisions to Section 7 (i) (r) and or any other section of the Nigerian Airspace Management Agency (Establishment etc) Decree No. 48 of 1999 which defines the functions of the 1st Defendant to include "charge for services provided by the Agency" and the payment of 5% (five percent) Ticket Sales Charge (JSC) by the Plaintiffs (sic) to the Defendants, the Plaintiffs are not in compliance with the law to entitle the 1st Defendant to impose a "So-Called" Domestic En-Route Charges,
  • ii
    whether having regard to the said Section 7 (i) (r) and or any other section of Decree No. 48 of 1999, the Defendants have and or can exercise any powers to the detriment of the Plaintiffs to arbitrarily vary and or substitute the charges payable by the Plaintiff"

The Plaintiff then sought the following reliefs from the trial Federal High Court:

  • 1
    A declaration that the payment of 5% (five percent), Ticket Sales Charge (TSC) by the Plaintiffs to the Defendants is in compliance with Section 7 (i) (r) or any other section(s) of Decree No. 48 of 1999 for services provided for by the Defendants and precludes the 1st Defendant from the imposition of a so-call (sic) domestic en-route charges.
  • 2
    A declaration that the defendants have no power either under Section 7 (i) (r) and or any other section(s), of Decree No. 48 of 1999, to the detriment of the Plaintiffs to arbitrarily vary and or substitute the charges payable and being paid by the Plaintiffs;
  • 3
    An order of perpetual injunction restraining the Defendants either by themselves their agents, servants, representatives, privies and or whosoever acting for and or on their behalf from imposing any further and or other charges except as provided by the law and or has being complied by the Plaintiffs."

The Originating summons was supported by an Affidavit. The Respondent herein filed a counter affidavit to the originating summons. The 3 other Respondents, apart from the Respondent herein, were struck out for various reasons in the course of the trial and appeal. The Appellant and the Respondent thereafter adopted their respective final written addresses and the matter was adjourned for judgment. In a judgment delivered on the 19th day of June, 2003, the trial court, held that the Plaintiffs action succeeded and that the Respondent has no statutory power to levy the domestic en-route charges. The Court refused to grant the declaratory reliefs but went ahead to grant the sole injunctive relief.

Before the judgment of the court was delivered, the Plaintiff by motion on notice dated 4th of April, 2003 sought an order of the trial court granting leave to amend the originating summons "to properly reflect the name of the Plaintiff to wit: "The Incorporated Trustees of Airline Operators of Nigeria" in place of the name: "Airline operators of Nigeria." This application was granted by the trial court inspite of opposition from the Respondent. See Page 113 of the Record.

The Respondent by Notice of Appeal dated 6th August, 2003 filed an appeal contesting the decision of the trial court. The Notice of Appeal contains 4 grounds. The Notice of Appeal was subsequently amended pursuant to an order of the court below and the extant Notice of Appeal is the one dated the 8th day of January, 2004 at Pages 135 - 138 of the Record. The Appellant's brief of argument at the court below dated 11th May, 2004 is at Pages 154-172 of the Record. In response to the Respondent's brief of argument in the court below, the Appellant herein (as respondent in that court) filed its own brief of argument. The said brief of argument which is dated the 28th of April, 2005 is at Pages 186 - 204 of the Record of Appeal. In its said brief, the Appellant herein gave notice of a preliminary objection wherein he contended that: "The 1st Respondent's objection is that the Appeal is not arguable".

The Appellant thereafter embedded argument in respect of the Preliminary objection in its brief. In reaction to the Appellant's brief at the court below, the Respondent herein filed a reply brief dated 8th of June, 2005. See Pages 202 - 204 of the Record. When the appeal came up for hearing on the 17th day of November, 2005, the Appellant herein was absent and was not represented by counsel, (pages 205 - 206 of the Record). Counsel to the Respondent herein then moved the court to strike out the Appellant's (who was Respondent) objection for failure to file a formal notice of preliminary objection and to argue it orally in court whereupon the court below reserved judgment. The Judgment of the court below which is dated the 15th day of February, 2006 is at Pages 207 - 238 of the Record. In its said judgment the court below held that the objection of the Appellant fell foul of Order 3 Rule 15 of the Court of Appeal Rules, 2002 and accordingly adjudged it incompetent and discountenanced same. The court below then considered the appeal on its merit and allowed it. In a unanimous judgment, the court held that the Respondent herein had the power under the enabling law to charge the domestic en-route charges and the decision of the trial court was set aside.

Dissatisfied with decision of the court below, the Appellant herein under the name "The Registered Trustees of the Airline Operators of Nigeria" filed a Notice of Appeal dated 20th March, 2006.

Issues

Whether the appeal at the lower court was not incompetent in view of the...

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