Background
In 2003 the Federal Government, acting through the Federal Airport Authority of Nigeria (FAAN), granted Bi Courtney Ltd and Stabilini Visinoni Ltd a 36-year build-operate-transfer concession to redevelop and operate the Murtala Mohammed Airport Domestic Terminal 2 (MMA2), Lagos. The concession required the Government to channel all domestic flights to MMA2 and to grant exclusive rights to collect levies and surcharges arising therefrom.
Despite these terms, the Government allowed domestic flights at another terminal, issued an approval in principle for a new Lagos airport, and denied vacant possession of the general aviation terminal. Bi Courtney Ltd alleged breaches, triggered the contract’s dispute resolution procedure and obtained a unanimous directive from the coordinating committee favoring its rights. When FAAN and other agencies failed to comply, Bi Courtney Ltd sued the Attorney-General of the Federation in the Federal High Court, Abuja, and secured judgment on 3 March 2009.
FAAN, unaware of the suit until it impeded its own revenue collection, sought to appeal as an interested party. Its application in the Court of Appeal combined trinity prayers (extension of time to seek leave, leave to appeal, and extension of time to file the appeal) without first obtaining leave to be joined. The Court of Appeal dismissed the application on grounds of incompetence, non-compliance with procedure and absence of distinct interest. FAAN appealed to the Supreme Court.
Issues
- Was FAAN entitled to appeal as an interested party given its non-joinder, the concession terms and orders made?
- Did privity of contract and separate legal personality require Bi Courtney Ltd to sue FAAN rather than the Attorney-General?
- Did FAAN comply with Court of Appeal Rules in its trinity prayers, and was its application properly before that court?
- Would substantial justice favor granting FAAN’s application in view of its supporting affidavit?
Ratio Decidendi
- Under section 243(1)(a) Constitution, a non-party must first obtain leave to appeal as an interested party before seeking any out-of-time relief.
- There is no fixed time limit for seeking leave; the affidavit must show genuine interest, prejudice by the judgment, and reason for non-joinder.
- Non-joinder alone does not render an action incompetent absent a statutory provision.
- Agencies of the Government act under their principal’s authority; the Attorney-General is the proper defendant for Government contracts.
Court Findings
The Court held:
- Jurisdiction & Interested Party: FAAN, as a Government agency, shared its principal’s interest; the Attorney-General alone represents those interests in litigation. FAAN had no separate legal grievance.
- Non-joinder: Failure to join FAAN did not void the High Court action; only statutory provisions could bar the suit.
- Arbitration Clause: The coordinating committee stage was pursued; arbitration would arise only if committee or expert panel decisions were challenged—there was none.
- Trinity Prayers & Leave Requirement: FAAN combined leave to appeal as interested party with extension prayers. Leave is a separate, fundamental relief; without it the application was incompetent.
- Exercise of Discretion: FAAN’s affidavit did not explain the full delay or establish good and substantial reasons; the Court of Appeal properly refused to exercise its discretion.
Conclusion
The Supreme Court dismissed FAAN’s appeal, affirmed the Court of Appeal’s 8 July 2011 ruling, and held FAAN’s application incompetent. Costs were reserved.
Significance
This decision clarifies procedure for interested party appeals under section 243 Constitution and Court of Appeal Rules: leave to appeal must be distinct and precede out-of-time prayers. It reaffirms that Government agencies act through their principal (Attorney-General) in litigation and that non-joinder does not per se negate competence. The judgment underscores faithful compliance with procedural rules and the strict but judicial exercise of discretionary powers.