Barristers & Solicitors
Appeal Court Nullifies N45.1m Cost Awarded against FAAN

The Court of Appeal, Lagos Division has set aside the judgement of a Federal High Court, delivered by Justice Lambo Akanbi, which awarded the sum of N45, 119,933.00 against the Federal Airports Authority of Nigeria (FAAN) over its refusal to allow a firm, Best Quality Products and Marketing Ltd usage of the new VIP lounge General Aviation Terminal (GAT), Murtala Muhammed International Airport, Ikeja, Lagos.

Setting aside the judgment of the lower court, the appellate court in its lead Judgement delivered by Justice Abubakar Sadiq Umar held that the suit before the lower court was incompetent because it was not initiated by due process of law.

Other members of the panel, Justice Monica Dongban-Mensem (presiding), and Justice Obande Festus Ogbuinya, aligned with the lead judgement.

The Respondent, Best Quality Products and Marketing Ltd had in suit number FHC/L/CS/737/2007 prayed the lower court for a Declaration that by the letters dated 7th April 2005, 12th April 2005 and 3rd May 2005 is entitled to use the New VIP Lounge General Aviation Terminal (GAT) Murtala Mohammed International Airport, Ikeja, Lagos.

It also sought for a declaration that the Plaintiff is entitled to occupy the New VIP Lounge General Aviation Terminal (GAT), Murtala Muhammed International Airport Lagos from the 3rd May 2005 when the Defendant confirmed the Plaintiff as the person entitled to engaged in concessionaires services at the said New VIP Lounge to the 3rd of May 2010 being the usual 5 years duration operating in every concessionaire business at all Airports in Nigeria worldwide.

The Plaintiff also claims N20, 119, 933.00 being the total value of all the goods, items, equipment and materials belonging to the plaintiff and being under the custody of the Plaintiffs that are at the said New VIP Lounge General Aviation Murtala Mohammed Airport, Ikeja, Terminal (GAT), 2007 when the Defendant Lagos as at 24 April, forcefully broke and entered into the premises.

The Plaintiff also asked for the sum of N54, 040, 000.00 being total income that would have accrued to the Plaintiff (at the rate of N1, 500,000.00 per month) from the 24 April, 2007 when the Plaintiff was unlawfully  evicted from the above premises to 3” May, 2010 when the duration of concessionaire business of the Plaintiff is expected to expire in accordance with the trade practice and custom of concessionaire business at Airports worldwide.

It also demanded  general damages in the sum of N 25, 000, 000.00 the Defendant for the wrongful, unlawful and forceful eviction of the Plaintiff from the New VIP Lounge General Aviation Terminal (GAT), Murtala Mohammed International Airport, Ikeja, Lagos on the 24″ April 2007.

However, FAAN in its statement of Defence dated and filed on the 21st of September 2007, challenged the locus standi of the Plaintiff to commence the suit without filing a pre-action notice as required by Section 20(2) of the Federal Airport Authority Act, 2004.

Upon the commencement of trial on the 17th of February 2010, the Respondent called one witness and tendered several exhibits, while the Appellant similarly called one witness and closed its case.

The trial court in its Judgement, delivered on the 7th day of July 2010 granted the Respondent’s reliefs one, four and six.

Being dissatisfied with the Judgment of the lower court, FAAN appealed against the judgement and urged the Court to set aside the judgement of the lower court.

The appellate court in a unanimous decision, delivered on March 31, 2023, held “The rationale behind the jurisprudence of a pre-action notice is to enable the defendant know in advance the anticipated action and a possible amicable settlement of the matter between the parties, without recourse to adjudication by the Court. The purpose of giving notice to a party is not only for the party to be caught unawares but so that it should have adequate time to prepare to deal with the claim in its defence.

“Moreover, it is trite that where a statute requires that there should be a pre-action notice before an action can be commenced in Court, there must be compliance with that statutory provision for the Court to assume jurisdiction over the matter. Where service of pre-action notice is required, it is very fundamental as it touches on the competence of the suit. In such instance, the failure to issue and serve the Pre-action Notice amounts to a vital or serious omission that mars a suit and renders it a nullity. It is not a mere irregularity that could be waived or disregarded, therefore an action commenced without pre-action notice where one is statutorily required is a nullity.

“Jurisdiction is an important factor which gives life to a suit. It is the live-wire of a suit and if a matter is heard by a Court in the absence of jurisdiction or put differently, if there is any defect in the competence of a Court to adjudicate on a matter, it amounts to embarking on a futile exercise no matter how well it is conducted and decided.

“In the instant case therefore, failure to give the pre-action notice renders the action incompetent, ineffective and void ab initio.

“In the circumstance, it is my considered view that the lower Court was _in grave error to have relied on Exhibit D3 to hold that the – Respondent has fully complied with the provisions of Section 20(2) of the FAAN Act. The failure of the Respondent to issue and serve the pre-action notice prior to the commencement of this suit on appeal is fatal as the lower Court has been disrobed of jurisdiction to adjudicate the matter.

“In light of the foregoing, all proceedings at the lower Court are a nullity. This issue is resolved in favour of the Appellant. Flowing from the above and having held that the suit before the lower Court was incompetent because it was not initiated by due process of law in that the action was commenced without a pre-action notice as statutorily required by Section 20 (2) of the FAAN Act, the the determination of other issues in this appeal has therefore become academic. The Court only deals with live issues and will not waste time resolving academic issues which will serve no useful purpose.

“On the whole, I hold that this appeal is meritorious and hereby allowed. Accordingly, the Judgment of the lower Court Coram L. Akanbi J, delivered on the 7th day of July 2010 in Suit No: FHC/L/CS/737/2007 is hereby set aside.”