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And Azman Air Services Ltd………… IN THE HIGH COURT OF JUSTICE OF THE FEDERAL CAPITAL TERRITORY HOLDEN AT MAITAMA ABUJA. ON THE 7TH DAY JULY 2017. BEFORE HISLORDSHIP: HON. JUSTICE MARYANN E. ANENIH (PRESIDING JUDGE) SUIT NO. 2098/16. MOTION. M/5803/17. BETWEEN MARYAM SHETTIMA ………………….PLAINTIFF/RESPONDENT AND AZMAN AIR SERVICES LTD…………DEFENDANT/APPLICANT. RULING. Before this Honourable Court is a Notice of preliminary objection filed on the 25th of April, 2017 challenging the jurisdiction of this Honourable court to entertain this action. The Notice of Preliminary Objection is supported by a 6 paragraph affidavit deposed to by Alhaji Lawal Sulaiman with an accompanyingwritten address. The reliefs sought by the Defendant/Objector are as follows : 1. An order of this Honourable court dismissing this action in totality for want of jurisdiction with substantive cost. Page 1. 2. And for such further order or orders as this Honourable court may deem fit to make in the circumstances. The ground upon which this application is predicated are as follows: 1. That this Honourable court lacks jurisdiction to entertain this action being issue related to aviation and safety of aircraft and passengers. 2. That this Honourable court lacks jurisdiction to entertain a matter in relation to airlines’ obligations to passengers. 3. That this suit is incompetent and amount to abuse of court process. In opposition to the notice of preliminary objection, the Plaintiff/Respondent filed on the 27th of April, 2017 a counter affidavit of 7 paragraphs deposed to by Abdulrahman Abdullahi with an accompanying written address. Both Counsel adopted their written addresses and made oral submissions in court. I have considered the notice of preliminary objection before the court, the oral submissions, written address and the response thereto. And I am of the view that the issue for determination is: 1. Whether this court has the jurisdiction to entertain this case under the circumstance. Page 2. The law is trite that the issue of jurisdiction is so cardinal and fundamental to any effective adjudication in our jurisprudence that any defect in the competence of the Court is fatal, and the proceedings are a nullity however well conducted and decided. See AGU & ANOR V. COP(2016) LPELR-40026(CA)(P. 12, Paras. D- E). It is also trite law that jurisdiction is the blood that gives life to the survival of an action in a court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise. See UTIH & ORS. V. ONOYIVWE & ORS.(1991)1 NWLR (Pt.166) 166 or (1991) LPELR-3436(SC)(P. 46, paras. C-D). It is settled law that in determining the jurisdiction of a court to entertain a cause or matter, the processes to be considered by the court are the processes filed by the plaintiff or the Applicant which is usually the writ of summons and statement of claim before it to ascertain whether the case before it is initiated by due process of law. See APGA V. ANYANWU & ORS(2014) LPELR-22182(SC)(P.38, paras. C-E) NNAJI V. NFA & ANOR. (2010) LPELR-4629(CA)(P. 17, paras. A- D) See also; SPDC & ORS v. AGBARA & ORS(2015) LPELR-25987(SC)(P. 28, Paras. C-E) where his lordship MUHAMMAD, J.S.C. held that: Page 3. "In Madukolu v. Nkemdilim (1962) 2 SCNLR 341, this court laid down in clear terms factors determining the jurisdiction of a court: a) that the subject matter of the case is within its jurisdiction: b) that there is no feature in the case which prevents the court from exercising its jurisdiction; c) that the case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction." From the foregoing, it is very clear that in determining the jurisdiction of this court to entertain a cause or matter, the court has to examine the writ of summons, the statement of claim and the reliefs claimed. It is in the light of the above that I hereunder reproduced the claims of the Plaintiff as contained in the statement of claim filed on the 1st of July, 2016 to ascertain whether or not this court has the jurisdiction to entertain this action. The plaintiff’s claims against the Defendant are as follows: 1. An Order of this Honourable court for refund of the sum of N24, 500.00 (Twenty Four Thousand and Five Hundred Naira) being the sum paid by the plaintiff for a seat reservation and carriage on Flight No. AZM2313 (HK). 2. An Order of this Honourable court awarding the plaintiff the sum of N20,000.00 (Twenty Thousand Naira) being transport fare paid by the plaintiff for the chattered of a car from Abuja to Kano. 3. An Order of this Honourable court awarding the plaintiff the sum of N5,000,000.00 (Five Million Naira) as compensation for Page 4. Defendant’s breach of contract to carry the plaintiff on Flight No. AZM2313(HK). 4. An Order of this Honourable court awarding the plaintiff sum of N20,000,000.00 (Twenty Million Naira) as damages for loss of earning, psychological and physical trauma occasioned on the plaintiff by the defendant’s breach of contract to carry the plaintiff on flight No.AZM2313(HK). 5. Interest on the judgement sum at the rate of 5% from the date of judgement till the liquidation of the Judgement debt. 6. The cost of this suit. The entire averments in the statement of claim are outlined in the said statement in the case file. It is upon receipt of the above mentioned writ of summons with the aforementioned claims that the Defendant/Objector filed the instant objection challenging the jurisdiction of this Honourable court to entertain this action. Having carefully scrutinised the writ of summons, the statement of claim and reliefs sought by the Plaintiff and the accompanying processes, it is observed that the plaintiff has filed this action before this court because she boughtticket for seat reservation from the defendant on flight No. AZM2313(HK) from Abuja to Kano on the 1st of October, 2014 and on the 3rd of October, 2014 she was cleared and issued boarding pass only to be informed when about boarding that there was no available seat on the aircraft which took off without her being allowed to board. The Defendant/Objector in paragraph 3 of the supporting affidavit averred that the matter before this court is strictly aviation related issue which is not triable by this court while the plaintiff/Respondent Page 5. on the other hand averred in paragraph 4 and 5 of the counter affidavit that this suit is not an aviation related matter and as such the suit is competent and triable by this court. It is settled law that the powers and jurisdiction of thecourts are derived from the Constitution, and thestatutes that create the court, and other enablinglaws. See OTOAKHIA V. AERO CONTRACTORS (NIGERIA) LTD (2014) LPELR-23319 (CA) Pg. 20, Paras. A-B Now the pertinent question here is whether this court is seized with jurisdiction to entertain this case?. In answering this question, the court will have to examine the provisions of Section 251(1)(k) of the 1999 Constitution (as amended) which is hereunder reproduced as follows: "251. (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters. (a)-(j) (k) aviation and safety of aircraft;” I have carefully gone through the oral and written submissions of both counsel. The Defendant/ Objector argued in paragraph 3.0 of his written address in support of the Preliminary objection that this matter deals with the passengers right and responsibilities and Airlines’ obligations to passengers in relation to overbooking, denied boarding as well as delays and cancellation of flights which are all matters that relates to the Aviation and Safety of Aircraft. Page 6. That for an action to commence in the first place, the plaintiff has to adhere to the provision of Section 251(1)(k) of the 1999 constitution. On the other hand, the Plaintiff/Respondent submitted that this suit does not fall within the purview of the provisions of section 251(1)(k) of the constitution since the suit can only fall within aviation related matter only when there is an actual carriage of the plaintiff in the aircraft. And that in the instant case, there was no carriage and the plaintiff did not board the aircraft. And for this position the defendant/objector placed reliance on the case of KLM ROYAL DUTCH AIRLINES V. TAHER (2014) 2 NWLR (PT.1393) Pg. 137 at 190-191 and 193-194. I have gone through this holding of the court of Appeal and with due respect to learned Counsel, I am not convinced that it applies to the instant case as can be gleaned from paragraphs 3.5 to 3.9 of the statement of claim of plaintiff. The plaintiff had purportedly been issued ticket, cleared and given a boarding pass. She had actually proceeded to boarding when she was refused entry into the plane by officials of the airline. In my view this is not just a situation of simple breach of contract referred to at page 190 of the case of KLM ROYAL DUTCH V.
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