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Regd. Trustees, Airline Operators of Nigeria v. Nigerian Airspace Mgt. Agency

THE REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA

V

NIGERIAN AIRSPACE MANAGEMENT AGENCY

SUPREME COURT OF NIGERIA

MUHAMMAD S. MUNTAKA-COOMASSIE JSC ( Presided )

MARY UKAEGO PETER-ODILI JSC

OLUKAYODE ARIWOOLA JSC

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JSC

JOHN INYANG OKORO JSC ( Read the Lead Judgment )

SC. 149/2006

FRIDAY, 28 FEBRUARY 2014

APPEAL - Case pleaded at trial - Where party sets up one different from the case on appeal - Impropriety of

APPEAL - Nature of - Competence of - Irrelevance of wrong heading in where parties are not misled

APPEAL - Preliminary objection - Respondent who intends to raise Onus on to give appellant three clear days notice of - Where fails to comply with - Orders court may make - Separate notice of When needless to give - Leave to argue - Where not obtained Incompetence of - Court of Appeal Rules, Order 3, rule 15(1) and (3)  considered

COURT - Supreme Court - Decisions of - Bindingness of parties by

INTERPRETATION OF STATUTE - Words of statute - Where clear and unambiguous - Interpretation of - Court - Proper approach to Provisions of statutes - Onus on when interpreting

JUDICIAL PRECEDENT - Stare decisis - Supreme Court - Decisions of -  Bindingness of parties by

PARTIES - Misnomer - Meaning of - When occurs - Nature of that will vitiate proceedings

PRACTICE AND PROCEDURE - Amendment - When takes effect - Court -  Duty on to do substantial justice by granting when necessary

PRACTICE AND PROCEDURE - Misnomer - Meaning of - When occurs -  Nature of that will vitiate proceedings

PRACTICE AND PROCEDURE - Non-existing person - Action commenced by or against - Incompetence of - Rationale for Juristic personality - Basis of

STATUTE - Court of Appeal Rules, Order 3, rule 15(1) and (3) Preliminary objection - Respondent who intends to raise - Onus on to give appellant three clear days notice of - Where fails to comply with - Orders court may make - Separate notice of - When needless to give - Leave to argue - Where not obtained Incompetence of

Issues:

  1. Whether the appeal at the lower court was not incompetent in view of the fact that the respondent therein is not a “person”/ body known to law.
  2. Whether the lower court was not in error to have struck out the appellant as respondent’s preliminary objection on the basis that it was not in compliance with Order 3, rule 15 of the Court of Appeal Rules, 2002, when the number of days between the filing of the preliminary objection in the brief and the hearing of the appeal exceeded three days.
  3. Whether the lower court was right in holding that section 11(b)( iv) of the Nigeria Airspace Agency Act empowers the respondent as appellant to levy in addition to ticket sales charges, “domestic enroute charges.

Facts:

The plaintiff now appellant, commenced an action as Airline Operators of Nigeria in the Federal High Court, Lagos Division, via originating summons, seeking determination of the following questions; whether having regard to the provisions of section 7(i)(r) or any other section of the Nigerian Airspace Management Agency (Establishment etc.) Decree No. 48 of 1999, which defines the functions of the respondent to include “charge for services provided by the agency” and the payment of 5 % Ticket Sales Charge (TSC) by the appellant to the respondent, the appellant is not in compliance with the law to entitle the respondent to impose a so-called domestic enroute charges and whether the respondent have or can exercise any power to the detriment of the appellant to arbitrarily vary and/or substitute the charges payable by the appellant. It therefore prayed for declaratory and injunctive reliefs that the 5% ticket sales charge by the appellant to the respondent 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 respondent and precludes the latter from imposing a so called domestic enroute charge, the respondent have no power to arbitrarily vary and/or substitute the charges payable and being paid by the appellant and an order of perpetual injunction, restraining the respondent from imposing any further charge except as provided by the law and/or has been complied with by the appellant.

While judgment was pending, the appellant sought leave of the trial court to amend its name as “Incorporated Trustees of Airline Operators of Nigeria”. The trial court granted the application and the appellant’s reliefs in part to the effect that the respondent had no statutory powers to levy the domestic enroute charges. Not satisfied, the respondent filed an appeal to the Court of Appeal, to which the appellant filed a preliminary objection. On the hearing date, in the absence of the appellant and on the application of the respondent, the Court of Appeal dismissed the objection and allowed the appeal. Also not satisfied, the  appellant filed an appeal to the Supreme Court, contending that the lower court wrongly dismissed its objection and granted the respondent’s appeal.

In determining the appeal, the Supreme Court considered the following statutes:

Court of Appeal Rules, 2002, Order 3, rule 15 -

“15(1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of the objection and it shall file such notice together with twenty copies thereof with the Registrar within the same time.

  1. No objection shall be taken to the hearing of an appeal on

the ground that the amount fixed by the Registrar of the court below under rule 8(1) of this Order were incorrectly assessed.

  1. If the respondent fails to comply with this rule, the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other order as it thinks fit.”

Nigerian Airspace Management Agency (Establishment etc.) Decree

No. 48 of 1999, section 7(i) and 11 “7. Functions of the Agency” (1) The Agency shall:

  1. provide air traffic services in Nigeria, including air traffic control, visual and nonvisual aids, aeronautical telecommunications services and electricity supplies relating thereto, to enable public transport, private; business and military aircraft fly, as far as practicable and as safely as possible;
  2. provide aerodromes at all the major Nigerian airports, the navigation services necessary for the operation of aircraft taking-off and landing and integrate them into the overall flow of air traffic within the Nigerian airspace;
  3. minimize or prevent interference with the use or effectiveness of all apparatus used in connection with air navigation and for prohibiting or regulating the use of all such apparatus and the display of signs and lights liable to endanger aircraft and endanger the use of the Nigerian airspace;
  4. generally secure the safety, efficiency and regularity of air navigation, as may be deemed appropriate from time to time;
  5. require persons engaged in or employed in or in connection with air navigation, meteorological information for the purpose of air navigation, as may be deemed appropriate from time to time;
  6. provide adequate facilities and personnel for effective security of navigational aids outside the airport perimeters;
  7. create conditions for the development, in the most efficient and economic manner, of air transport services.
  8. procure, install and maintain adequate communication,

navigation and surveillance and air traffic management facilities at all airports in Nigeria.

  1. ensure an effective co-ordination in the use of the Nigerian airspace in line with established standards and procedures.
  2. ensure the co-ordination at all levels of decisions relating to airspace management and air traffic control in Nigeria.
  3. hold meetings with the armed forces on Nigeria’s international obligations as they relate to civil and military co-ordination;
  4. promote familiarization visits by civil and military personnel to air traffic service units;
  5. maintain permanent liaison with the civil air traffic services units and all relevant air defence units, in order to ensure the daily integration or segregation of civil and military air traffic operating within the same or immediately adjacent portions of the Nigerian airspace, employing civil or military radars as necessary.
  6. obviate the need for civil aircraft to obtain special air defence clearance;
  7. take necessary steps to prevent, as far as possible, penetration of controlled airspace by any aircraft, civil or military without co-ordination with the air traffic control unit concerned.
  8. encourage research and development relating to all aspects of the Nigerian airspace designed to improve air safety.
  9. undertake systems engineering development and implementation for communications, navigation and surveillance and air traffic management.
  10. charge for services provided by the Agency;
  11. co-ordinate the implementation of search and rescue services; and
  12. discharge the operational, technical and financial air traffic service commitments arising from Nigeria’s membership of international organization and other air navigation agencies”.

“11.     Fund of the Agency

There shall be established and maintained for the Agency, a fund into which shall be paid and credited:

  1. all subventions and budgetary allocation from the Government of the Federation;
  2. all fees and funds accruing from:-
    1. enroute local, international facility charges;
    2. overflight charges;
    3. charges on class B messages;
    4. 30  per cent of the air ticket sales charges;
    5. 30  per cent of the cargo sales charges;
    6. sales of information;
    7. violation of airspace fines;
    8. rentage of property, plant and equipment; (ix) contract registration fees.
  3. all return on investments;
  4. foreign aid and assistance from bilateral agencies; and
  5. all other sums which may, from time to time, accrue to the Agency”.