Federal Airports Authority Of Nigeria V. Bi-courtney Limited & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Lead Ruling)

This is an application filed on 29th day of June 2010 in which the Applicant prayed for the following orders:-

“(1) Extension of time within which to seek leave to appeal as “Party Interested” against the Judgment of the Federal High Court dated 3rd March 2009 delivered in Suit No: FHC/ABJ/CS/50/2009.

(2) Leave to Appeal as “Party Interested” against the Judgment of the Federal High Court dated 3rd March 2009 delivered in Suit No: FHC/ABJ/CS/50/2009.

(3) Extension of time within which to appeal as “Party Interested” against the Judgment of the Federal High Court dated 3rd March 2009 delivered in Suit No: FHC/ABJ/CS/50/2009.

(4) And any further order(s) the Honourable Court may deem appropriate to make in the circumstance.”

The application is based upon the following grounds:-

(1) FAAN is a party to the Concession Agreement dated 24th April 2003 (the Concession Agreement) which agreement is the subject matter of Suit No: FHC/ABJ/CS/50/2009. FAAN has primary duties/rights/obligations under the Concession Agreement.

(2) Suit No: FHC/ABJ/CS/50/2009 was commenced by the 1st Respondent herein for the interpretation and enforcement of the Concession Agreement however FAAN was not made a party to the said Suit No: FHC/ABJ/CS/50/2009 despite the fact that the said suit affected FAAN’s interests/rights/obligations under the Concession Agreement.

(3) The existence of the said Suit No: FHC/ABJ/CS/50/2009 only reached FAAN’s notice well after Judgment was given in the said suit.

(4) The Judgment of the Federal High Court dated 3rd March 2009 wrongfully affected the rights/interests/obligations of FAAN despite the fact that FAAN was not a party to the said Suit No: FHC/ABJ/CS/50/2009 and also did not have any knowledge or notice of the suit’s existence.

(5) The Concession Agreement, subject matter of Suit No: FHC/ABJ/CS/50/2009 is an arbitration agreement which provided expressly that all disputes arising from there would ultimately be resolved by arbitration. Litigation was not an option for dispute resolution under the Concession Agreement.

(6) The existence of the Judgment was recently brought to the attention of FAAN when reference was made to it in Bi-Courtney’s continued refusal to settle its debts to FAAN. Due to bureaucratic bottlenecks and challenges at the Presidency and with the Federal Executive Council, approval for FAAN to appeal the Judgment was given on 23rd March 2010.

(7) By this time the period statutorily provided to appeal against a final Judgment had lapsed and it had become impossible and impracticable to seek the leave in the Federal High Court.