IN THE SUPREME COURT OF NIGERIA66

HOLDEN AT ABUJA

ON FRIDAY THE 28TH OF FEBRUARY, 2003

BEFORE THEIR LORDSHIPS

MUHAMMADU LAWAL UWAIS

CHIEF JUSTICE OF NIGERIA

MICHAEL EKUNDAYO OGUNDATE

SYLVESTER UMARU ONU

ALOYSIUS IYORGYER KATSINA-ALU

NIKI TOBI

JUSTICES, SUPREME COURT

SC.112/2000

BETWEEN:
1. ARJAY LIMITED }

2. STREAMLINE AVIATION (S.W.) }DEFENDANTS.. APPELLANTS

U.K. LTD

3. WILLOW JET LIMITED AIR }

TABERNACLE LTD

AND
AIRLINE MANAGEMENT

SUPPORT LTD. }PLAINTIFF/RESONDENT

(JUDGMENT Delivered by S.U. Onu,J.S.C.)
"Evidence cannot be given of a matter not contained in the party's pleading". So held the Supreme Court in this case.

The respondent as plaintiff claimed against the appellants who were defendants in the Federal High Court, Kano as follows:

The sum of Us $ 575,000 being special damages suffered by the plaintiff as a result of the defendant's alleged breach of aircraft lease agreements made by the parties on the 3rd of February, 1997.

The sum of US $500,000 being general damages suffered by the plaintiff as a result of the defendant's alleged breach.

Cost of filing and prosecuting this action.

Further or other reliefs.

By a motion exparte dated 21st March, 1997, the respondents asked for and were granted an order for interim injunction restraining the appellants from removing the aircraft out of the Mallam Aminu Kano International Airport, Kano. Four days after, the order was obtained, the respondent also brought a motion on notice for an order of interlocutory injunction. Upon the services of these processes on the appellants, they appeared by counsel and objected to the action on grounds of want of jurisdiction on the premise that the contract, subject matter of the suit was entered into in the United Kingdom and to be performed in Equatorial Guinea and that all the appellants were resident outside the jurisdiction of the court.

The appellants also prayed the court to strike out the names of the 2nd and 3rd appellant from the suit as they were not privy to the contract and in the alternative, an order setting aside or discharging the order of interim injunction.

Arguments were taken and the judge delivered a ruling dismissing the objection to jurisdiction and all the other prayers of the appellants.

The learned trial judge ordered the release of the aircraft upon payment by the appellants of US$100,000 to the Registrar of the Federal High Court, Kano who was instructed to open an interest yielding account with the Union Bank, Kano in trust for the parties.

Subsequent to the ruling, the respondent brought a motion exparte to very the order of the learned trial judge for the deposit of US $100,000 to be converted to its Naira equivalent. The said motion was moved and granted as prayed in the respondent's favour. The appellant moved their own motion on notice praying the court to set aside the order converting the security deposit into its Naira equivalent. This moved was dismissed.

The appellants proceeded to the Court of Appeal with three appeals before the Court of Appeal, Kaduna. At the hearing of the appeals, the appellants abandoned one of the appeals. In its judgment dated 8th January, 2000, the Court in a lead judgment by Omage JCA with Ayo Salami and Mahmmod Mohammed JJ.C.A. concerning dismissed one of the appeals and allowed the second. The appellants still being dissatisfied appealed to the Supreme Court on two grounds:

Whether there was material upon which the Court of Appeal could determine the issue of jurisdiction.

Whether having regards to the documents filed and conflict in the averments of the parties as found, the Court of Appeal was right in holding that there was no evidence before the court of which the issue of jurisdiction could be determined.

In a preliminary observation, the Supreme Court noted that appellant ought to have obtained leave of the Court of Appeal of the Supreme Court as stipulated in the Constitution of the Federal Republic of Nigeria 1999 before filing the said grounds of appeal.

After hearing the arguments of counsel of both parties, the Supreme Court in a considered judgment held that, "The place of performance of the contract is the place of resolution". It further held that "It will be wrong for a court to assume jurisdiction on the basis of an agreement which is extraneous to the relief sought before a court". The apex court therefore agreed with appellants' submission that the Court of Appeal erred in law in holding that there was a conflict in the averments made by both parties.

In conclusion, the Supreme Court determined that the jurisdiction in question could only be found in England or Equatorial Guinea, moreso that none of the parties to the case was resident in Nigeria. In the result, the appeal was allowed. The plaintiff/respondent's claim was struck out for want of jurisdiction in the trail court. The respondent was ordered to pay n10,000 costs to the appellants.

Adedolapo Akinrele, for the appellants O.A. Dada, for the respondents.