Attorney General Of The Federation V. Bi-courtney Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMIRU SANUSI, OFR ,J.C.A. (Delivering the Lead Ruling)

By a Motion on Notice dated the 19th of July, 2013 and filed on the 23rd of July, 2013, brought pursuant to order 7 Rules 1 and 10, Order 8, Rules 1, 4, 5, 10 of the Court of Appeal Rules, 2011, section 15 of the court of Appeal Act, 2004, the Applicant prayed this court for the following reliefs:

1) An Order extending the time within which the Appellant/Applicant may compile and transmit the Record of Appeal from the post judgment ruling of Hon. Justice J. K. Olotu of the Federal High Court, Abuja, in suit No:FHC/ABJ/CS/50/2009 (BI-COURTNEY VS. ATTORNEY GENERAL OF THE FEDERATION) to the Court of Appeal Abuja;

2. An Order deeming as properly compiled and transmitted from the Federal High Court, Abuja to the Court of Appeal, the Record of Appeal already compiled and transmitted;
3. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.

In support of the application are two affidavits, first a ten (10) paragraph affidavit deposed to by one Nnamdi Ekwem, a legal practitioner in the law firm of Kenna Partners (counsel to the Applicant), to which is attached one exhibit, i.e. Exhibit A, as well as a further and better affidavit deposed to by the same deponent, exhibiting Exhibits A & B. The Respondent filed a counter affidavit containing thirty (30) paragraphs, and a further and better counter affidavit deposed to by one Osarugue courage Obayuwana, a

legal practitioner in the law firm of Messrs Babalakin & Co (Counsel to the Respondent), and exhibiting Exhibits AG1, AG2 and AG3.

In compliance with the order of this Court made on the 6th of November, 2013 parties filed and exchanged written addresses. At the hearing of the application on the 27th of January, 2014, the learned counsel for the Applicant adopted and relied on the Applicant’s written address dated and filed on the 19th of November, 2013, and signed by Mr. Matthew Echo Esq., as his argument in support of the application.

Learned counsel for the Respondent, adopted and relied on the Respondent’s written address signed by Boonyameen B. Lawal Esq., as his response in opposition.

The facts that led to this application as distilled from the affidavits in support and the exhibits attached, are that the Respondent commenced an action at the Federal High court, Abuja, vide an originating summons dated January 23, 2009 and prayed the court essentially for interpretation and enforcement of rights arising out of a concession agreement dated April, 24, 2003 and judgment was delivered on the 3rd of March, 2009. The Respondent herein, then filed a motion on notice for an order of injunction restraining the Federal Government and all its agencies in the aviation sector from continuing the re-modeling and/or construction works to improve the General Aviation Terminal (GAT). The Federal High Court, sitting in Abuja, herein to be called “the Lower Court”, per Olotu J, delivered a Ruling in favour of the Respondent herein.

The case of the Applicant is that consequent upon the Ruling, a Notice of Appeal was filed on his behalf and concerted efforts were made to compile and transmit the Records to the Court of Appeal, but this was impossible as the certified true copy of the Ruling was not made available to it on time. By the time the CTC of the Ruling was obtained, and the Record compiled, time had already elapsed, hence the need for this application to regularize his position.

The Respondent’s story is that the Applicant has been and remains in blatant disobedience and disregard to the extant orders of the lower court in relation to the underlying Res of the instant appeal, hence his view is that the Applicant is not entitled to the favourable discretion of this court as sought in this application.

The learned counsel for the Applicant, in his written address, has formulated this lone issue for determination namely:

“Whether in view of the exercise of the right of appeal of the Appellant/Applicant and an appeal having been duly filed, the court ought not to exercise its discretion to grant the Appellant/Applicant an extension of time within which to compile and transmit the Record of Appeal in this appeal.”

The Respondent also formulated a sole issue for determination in his written address to wit:

“Whether the Applicant is entitled to the favourable discretion of this Honourable Court with regard to the instant application”.