Supreme Court Declares AMCON’s Application to Appeal as an Interested Party, Incompetent

OBi-Courtney Ltd v The Attorney-General of the Federation & AMCON SC.770/2014 n 5th April 2019, the Supreme Court of Nigeria, in a unanimous decision, overturned the decision of the Court of Appeal, which had hitherto, granted the Assets Management Corporation of Nigeria (AMCON), leave to appeal as an interested party, against the Order of the Federal High Court, Abuja Division coram Olotu, J.

Background The facts of the events resulting in the present appeal, are quite elucidating and fascinating. Sometime in the year 2000, the domestic terminal of the Murtala Muhammed Airport, Ikeja was engulfed by fire, which totally destroyed the terminal and brought to a halt, further aviation operations thereat. Consequently, the Federal Government of Nigeria (FGN), shut down the terminal. Subsequently, a Concession Agreement dated 24th April, 2003, was executed between Bi-Courtney Limited (BCL) and the FGN, as the Concessionaire of the MMA2, to design, build and operate the terminal and provide ancillary services thereat for 36 years. An affiliate of BCL, Bi-Courtney Aviation Services Limited (BASL), was incorporated to manage the operations of MMA2. It is to be noted that, various changes and improvements were made to the design initially contemplated for the project; this in turn, increased the initially estimated cost of the project. It was therefore, agreed that a Consultant be appointed to ascertain the cost of the project, with a view to determining the appropriate Concession period to enable BCL recoup its investment in the project.

Following various and recurring breaches of the terms of the Concession Agreement by the FGN and its agencies (especially the Federal Airport Authority of Nigeria (FAAN) and its management), BCL wrote a letter to the AttorneyGeneral of the Federation (AGF), requesting the constitution of the Coordinating Committee provided for under the Concession Agreement, to resolve the disputes between parties, including the determination of the question of “the length of the Concession period granted to the Concessionaire by the Grantor.” Upon conclusion of deliberations by the Coordinating Committee, it was unanimously resolved that, all the issues raised by BCL were meritorious, including the resolution that “the length of the Concession period is thirty-six (36) years from the anniversary of the Start date, as defined in the Concession Agreement”.

The above decision of the Coordinating Committee notwithstanding, the breaches of the Concession Agreement by the FGN and its agencies persisted; BCL was thereby, constrained to institute an action at the Federal High Court against the FGN in Suit No: FHC/ABJ/CS/50/2009. BCL urged the court to make an Order, compelling FGN to give full effect to the express terms of the Concession Agreement. The AGF, being the Chief Law Officer of the Federation, was the Defendant in the action, and he represented the interest of the FGN and its relevant agencies.

In its judgement delivered on 3rd March, 2009, the Federal High Court, (Coram CHIKERE J.) granted all the reliefs sought by BCL. The court directed that the FGN (represented by the AGF), should immediately render an account of all such revenues that has accrued to it from scheduled domestic flights operations conducted from any terminal other than MMA2 in Lagos State, after MMA2 became operational on 7/5/2007, and that all such revenue shall be remitted to the Concessionaire (BCL). This binding and subsisting judgement of court, informed the special meeting convened on 7th July, 2009 by the then President of the Federal Republic of Nigeria – Late Mallam Umaru Musa Yar’Adua, GCFR, in respect of the issues pertaining to MMA2. At the forefront of the deliberations at the meeting, whereat the representative of BCL was present and participated, was the concession period under the Concession Agreement, and the President affirmed its validity as a period of thirty-six (36) years.

The foregoing nonetheless, the FGN and its agencies, particularly the FAAN, refused to comply with the valid judgement of court, directing it to render account and remit revenue accruing to the FGN as a result of its violation of the terms of the concession.

Legal Proceedings: Federal High Court BCL therefore, invoked the inherent judicial powers of the Federal High Court by an application dated 5th April, 2012, wherein it sought inter alia, an order of the court endorsing the account computed at the instance of BCL, as well as an Order directing the FGN to pay to BCL the sum of N132,540,580,304.00 (One hundred and thirty-two billion, five hundred and forty million, five hundred and eighty thousand, three hundred and four Naira only), being the total sum plus interest which has accrued and payable by the FGN between the period of 7th May, 2007 and 6th May, 2011.

The Federal High Court (Coram OLOTU J), granted the Orders as prayed, including an Order directing the FGN to set-off from the above computed sum (i.e. N132,540,580,304.00), any claims agreed with BCL, to be due from BCL to any agency of the FGN, including but not limited to AMCON.

AMCON, being an agency of the FGN, in a purported attempt to express its dissatisfaction with the above Order of the Federal High Court, approached the Court of Appeal by way of an application dated 30th October, 2012, seeking leave to appeal as an interested party, against the decision of the FHC. BCL opposed the said application by way of filing a counter-affidavit, wherein it challenged the competence of the application, which was filed directly at the Court of Appeal, in contravention of the Rules of Court; as well as the merit of the application, on the basis that the Order made by OLOTU J. was specifically directed at the Attorney-General of the Federation (a statutory representative of FGN). By implication, it is only the Attorney-General of the Federation, who can file an appeal with respect to the said Order of court on behalf of the FGN and its agencies. More so, AMCON did not disclose any interest whatsoever, or show how its interest was negatively impacted by the Order of court.

Court of Appeal The Court of Appeal heard arguments in respect of the application, and in its ruling of 29th November, 2013, granted AMCON leave to appeal against the Order of the trial court as an interested party, notwithstanding the fundamental and credible objection raised to the competence of the application. The foregoing necessitated the appeal to the Supreme Court by BCL. Supreme Court At the Supreme Court, BCL raised two germane issues for consideration by the Court to wit:

(1)Whether the 2nd Respondent’s (AMCON) application for leave to appeal as an interested person, was competent; and

(2) Whether the 2nd Respondent (AMCON) disclosed any independent interest to justify the grant of its application for leave to appeal as an interested person, within the meaning of Section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

Arguments BCL argued at the Supreme Court that, the application filed by AMCON was incompetent, in that it did not fulfill the condition precedent for making the application for leave to appeal as an interested party, and that the reliefs sought in the application were ambiguous, nebulous and at large. Further, it was argued that, the application did not comply with constitutional procedure governing an application of this nature. In its response, AMCON contended that, it was interested in the matter of how its funds are applied, and that the grant of the application by the court below necessarily implies that the conditions precedent for granting leave to appeal as an interested party, were fulfilled.

The Apex Court, after listening to arguments of counsel and considering the relevant and applicable laws, reached an unassailable conclusion, adjudging the appeal filed by BCL challenging the decision of the Court of Appeal granting the application of AMCON, as meritorious. The Learned Justices of the Apex Court, in a unanimous decision, stated that the application of AMCON seeking leave to appeal as an interested party was INCOMPETENT, on the ground that the application ought to have been filed at the Federal High Court, rather than the Court of Appeal. Their Lordships held that, the right of appeal to the court below is required by the Constitution to be exercised in accordance with any Act of the National Assembly or Rules of Court guiding the practice and procedure of the court below. Apparently, AMCON brought the application under Order 7 Rule 4 of the Court of Appeal Rules, 2011, which stipulates that when an application may be made either to the High Court or the Court of Appeal, the application shall be made in the first instance to the High Court, except where there are special circumstances which made it impracticable to apply first to the High Court.

The only reason adduced by AMCON, as special circumstance for filing the application directly to the Court of Appeal in flagrant violation of the Rules of Court, was that time for appealing against the ruling of the Federal High Court had lapsed. The Supreme Court held that, in the face of the litany of judicial pronouncements that neither the Constitution nor the Court of Appeal Act or Rules prescribe any period within which an interested party may bring an application for leave to appeal as a person having an interest in the matter, it follows that AMCON laboured under a misconception of law, that time runs against an applicant seeking leave to appeal as an interested party.

The Supreme Court thereby, allowed the appeal filed by BCL and struck out the application filed by AMCON.

“THE LEARNED JUSTICES OF THE APEX COURT, IN A UNANIMOUS DECISION, STATED THAT THE APPLICATION OF AMCON SEEKING LEAVE TO APPEAL AS AN INTERESTED PARTY, WAS INCOMPETENT, ON THE GROUND THAT, THE APPLICATION OUGHT TO HAVE BEEN FILED AT THE FEDERAL HIGH COURT, RATHER THAN THE COURT OF APPEAL”