FEDERAL AIRPORTS AUTHORITY OF NIGERIA V. BI-COURTNEY LIMITED & ANOR
(2011)LCN/4764(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of July, 2011
CA/A/239/M/2010
RATIO
AFFIDAVIT EVIDENCE: POSITION OF THE LAW ON THE CONTENT OF AN AFFIDAVIT EVIDENCE; EFFECT OF AN AFFIDAVIT EVIDENCE CONTAINING EXTRANEOUS MATTER
It is necessary at this stage to consider what the Evidence Act said on the issue of affidavit evidence. Sections 78 and 86 of the Evidence Act provides that: – “A Court may in any civil proceeding make an order at any stage of such proceeding directing that specified facts may be proved at the trial by affidavit with or without the attendance of the deponent for cross-examination, notwithstanding that a party desires his attendance for cross-examination and that he can be produced for that purpose.” Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his personal knowledge or from information which he believes to be true.” It is my view that the combined effect of Sections 78 and 86 of the Evidence Act set out above is that an affidavit shall contain a statement of facts which the deponent knows personally or which he derived from other information or documents. And by virtue of Section 87 of the Evidence Act, an affidavit shall not contain extraneous matter by way of objection or prayer or legal argument or conclusion. Any paragraph of an affidavit, which offends against the provisions of Section 87 of the Evidence Act, will be struck out and if not struck out, it would be discountenanced by the Court at the conclusion of the case or when Judgment is delivered’ PER JIMI OLUKAYODE BADA, J.C.A.
LEAVE TO APPEAL: WHETHER FAILURE TO OBTAIN LEAVE WHERE IT IS REQUIRED WILL RENDER THE APPEAL INCOMPETENT AS THE APPELLATE COURT WILL BE DIVESTED OF ANY JURISDICTION TO ENTERTAIN THE MATTER
It is settled law that where the leave of the Court is required for the exercise of a right of appeal, obtaining such leave becomes a condition precedent to the exercise of that right of appeal, a failure to obtain leave where it is required will render the appeal incompetent as the appellate Court will be divested of any Jurisdiction to entertain the matter. PER JIMI OLUKAYODE BADA, J.C.A.
LEAVE TO APPEAL AS AN INTERESTED PARTY: WHETHER THE FACT THAT A SUIT IN WHICH THE APPLICANT HAD AN INTEREST IN, WAS PENDING IN COURT BUT HE NEITHER KNEW NOR WAS MADE A PARTY THERE TO WOULD COUNT AS SPECIAL CIRCUMSTANCE TO WARRANT HIM FILING FOR LEAVE AT THE APPELLATE COURT
Owena Bank Nig. Plc vs. Nigerian Stock Exchange Ltd (1997) 7 SCNJ Page 160 at 178 where it was held thus:- “Coming to the incompetency of the Respondents application before the Court below, the principle is that the fact that a suit in which he had interest was pending but that he did not know and was not made a party thereto, are facts which if proved, would entitle an applicant for leave to appeal as a person interested to be let in to so appeal either by the High Court or the Court of Appeal but do not qualify as special circumstances to warrant his filing the application first in the Court of Appeal rather than in the High Court enjoined by Order 3 Rule 3(4) of the Court of Appeal Rules. See – Ojukwu us. Governor of Lagos State (1985) 2 NWLR Part 10 Page 806…. Implicit in the words of Order 3 Rule 3(4) is that an Applicant has no right to choose or elect whether to apply first in the High Court or in the Court of Appeal. By that rule, the Applicant’s first port of call is the High Court, unless he can show special circumstance for any departure from the express words of that rule which will entitle him in that regard to apply straight to the Court of Appeal (emphasis is mine)- See also the following cases:- Re-Madaki (Supra) Bi-Courtney Limited vs. A.G. Federation, RE: Ojemaie Investment Limited CA/A/1 41lM/09 (Unreported); Bi-Courtney Limited vs. A.G. Federation RE-Safiyanu Dauda Mohammed & 5 Others CA/A//141/M/09 (Unreported). PER JIMI OLUKAYODE BADA, J.C.A.
EXTENSION OF TIME TO APPEAL: CIRCUMSTANCES UNDER WHICH AN APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL WILL BE GRANTED
An application for extension of time within which to appeal is not granted as a matter of grace, but on very good and substantial grounds shown in the Applicant’s affidavit. Where good reasons do not exist the application will be refused. See:- -General Oil Ltd vs. Oduntan (Supra): -Alagbe vs. Abimbola (1978) 2 S. C. Page 39. PER JIMI OLUKAYODE BADA, J.C.A.
INTERPRETATION OF STATUTE : INTERPRETATION OF ORDER 7 RULE 10 (2) OF THE COURT OF APPEAL RULES 2007 AS REGARDS AN APPLICATION FOR AN ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL
Under Order 7 rule 10 (2) of the Court of Appeal Rules 2007, Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. See the following cases:- Olowookere vs. African Newspapers (1993) 5 NWLR Part 295 Page 583 at 601; Registered Trustee G.A.C. vs. Uffiem (1998) 10 NWLR Part 569 Page 312 at 319. Flowing from Order 7 rule 10 (2) of Court of Appeal Rules referred to above is the fact that for the application for extention 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 to succeed the Applicant must show his legal interest and the following conditions must co-exist. (a) Good and substantial reasons for failure to appeal within the period prescribed by the appropriate rules of Court and; (b) Ground of Appeal which prima facie show good cause why the appeal should be heard. See the following cases:- Ukwu vs. Bunge (1997) 1 NWLR Part 518 Page 527; Ibodo vs. Enaroha & Others (1980) 5 – 7 S. C. Page 42 at 51. The above stated conditions must be complied with before the Court would exercise its discretion in favour of the Applicant. See the case of:- FMBN vs. Savannah Securities Ltd 15 NWLR Part 689 page 152 at 153. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
FEDERAL AIRPORTS AUTHORITY OF NIGERIA – Appellant(s)
AND
(1) BI-COURTNEY LIMITED
(2) ATTORNEY GENERAL OF THE FEDERATION – Respondent(s)
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.
The application is supported by an affidavit of 5 paragraphs, pertinent paragraphs of which are 3 and 4 reproduced as follows:-
“(3) That I am informed by Mrs. Monica Alophonse, the Head of FAAN’s Legal Department in our office on 9th June 2010 at about 10:30 am and I verily believe her as follows:
(a) That the instant suit was commenced by Originating summons dated 23rd January 2009 for interpretation and enforcement of rights arising out of Concession Agreement executed on 24th April 2003. A copy of the Concession Agreement is attached hereto as Exhibit FAAN1.
(b) That FAAN is a party to the Concession Agreement, with interests/right/obligations under it. However it was not made a party to the said Suit No: FHC/ABJ/CS/50/2009 despite the fact that it was directly a party to the Concession Agreement with interests/rights/obligations extending there from, which fact was well known to the 1st Respondent herein, who was the Plaintiff in the said Suit No: FHC/ABJ/CS/50/2009 and also a party to the Concession Agreement.
(c) That FAAN was not given any notice of the existence of the said Suit No: FHC/ABJ/CS/50/2009 or that the rights and obligations of parties to the Concession Agreement had been submitted for judicial interpretation and enforcement by litigation and judgment was given therein on 3rd March 2009.
(d) That the Judgment dated 3rd March 2009 wrongly affects FAAN’s interests/rights/obligations under the Concession Agreement. A copy of the Judgment dated 3rd March 2009 is hereby attached and marked Exhibit FAAN2.
(e) That the failure and refusal of the 1st Respondent herein to join FAAN to the said Suit No: FHG/ABJ/CS/50/2009 (despite its knowledge that FAAN is a primary party to the Concession Agreement dated 24th April 2003) or to give FAAN notice on the existence of the said suit prevented FAAN from being heard on the merits or otherwise of the said Suit No: FHC/ABJ/CS/50/2009 before Judgment was given therein.
(f) That FAAN’S ignorance of the existence of Suit No: FHC/ABJ/CS/50/2009 prevented it from taking steps to join the Suit as a party in view of the Concession Agreement dated 24th April 2003.
(g) That the Concession Agreement dated 23rd April 2003 is an arbitration agreement which does not admit litigation as a means of resolving disputes arising from its interpretation. The dispute resolution mechanism under the Concession Agreement was not exhausted before the said Suit No: FHC/ABJ/CS/50/2009 was filed.
(h) That the 1st Respondent herein who is heavily indebted to FAAN is refusing to settle its indebtedness based on the Judgment dated 3rd March 2009, which was given erroneously and in FAAN’s absence. Attached to this Affidavit is a bundle of correspondence showing the several unheeded demands for settlement of the 1st Respondent’s indebtedness, marked as Exhibit FAAN 3.
(i) That not being aware of the existence of the instant suit and not having participated in any way in its hearing on the merits, it was necessary for FAAN to immediately seek clarification/authorization for the Judgment to be appealed against, when its existence was recently referred to and used to refuse the settlement of debts due to FAAN. The authorization for this was given on 23rd March 2010 by letter. A copy of the said letter is attached and marked Exhibit FAAN 4.
(j) That by the time FAAN became aware of the existence of the Judgment dated 3rd March 2009 and the said 23rd March 2010 when approval to appeal was given the statutory period for appeal had elapsed.
(k) That upon receipt of the authorization FAAN immediately took steps to ascertain all particulars pertaining to Suit No: FHC/ABJ/CS/50/2009; the status of appeal(s) (if any) there from; the 1st Respondent’s claim that the Judgment dated 3rd March 2009 absolved it from settling its debts, and; the instruction of counsel to represent it in the Appeal.
Unfortunately due to some challenges at the Federal Executive Council and the Presidency FAAN’s efforts were further delayed.
(l) That FAAN’s inability to seek leave to appeal within the statutory period is due to the reasons stated above and it is not borne out of any disrespect whatsoever.
(m) That FAAN desires to appeal against the Judgment dated 3rd March 2009 on proposed grounds of appeal, which are contained in Exhibit FAAN 5 attached to this affidavit.”
The 1st Respondent opposed the Application and filed 19 paragraphs affidavit in opposition, pertinent paragraphs of which are 4 to 16 reproduced as follows:-
“(4) I have seen and read the Motion on Notice dated 25th June 2010 seeking extension of time within which to seek Leave to Appeal as an Interested Party against the Judgment of the Federal High Court dated 3rd March 2009 delivered in Suit No:- FHC/ABJ/CS/50/2009, Leave to Appeal as an Interested Party against the Judgment of the Federal High Court dated 3rd March 2009 delivered in Suit No: FHC/ABJ/CS/50/2009 as well as extension of time within which to appeal as an Interested Party against the Judgment of the Federal High Court dated 3rd March 2009 delivered in Suit No:- FHC/ABJ/CS/CS/50/2009.
(5) I know as a fact that the statements contained in the Applicant’s affidavit in support of the application are either incorrect, half truths, false and/or misstatements of the facts and circumstances of this case.
(6) Contrary to the misrepresentations of facts contained in the affidavit in support of the instant application sworn by one Adaku Okoroafor on behalf of the Applicant, I was informed by Kehinde Daodu, one of the counsel involved in the conduct of this matter, at our offices at 2nd Floor, Oakland Centre, 48, Aguiyi Ironsi Street, Maitama, Abuja on July 1st 2010 at about 4p.m. and I verily believe him as to the true facts of this matter as found below:
(i) SUIT NO: FHC/ABJ/CS/5012010 was commenced vide an Originating Summons dated 23rd January 2009 seeking the interpretation and enforcement of rights arising out of the Concession Agreement (FAAN 1) executed on the 24th April 2003;
(ii) That the Originating Summons sought mainly Declaratory Reliefs against the Federal Government in respect of its duties/obligations under the Concession Agreement (FAAN 1);
(iii) The Government of the Federal Republic of Nigeria controls and regulates all the agencies dealing with aviation business including but not limited to the Nigerian Civil Aviation Authority (NCAA), National Airspace Management Authority (NAMA) and the Federal Airports Authority of Nigeria (FAAN);
(iv) The Concession Agreement (FAAN 1) was signed by the Applicant herein as an agent/agency of and on behalf of the Federal Government of Nigeria which was a disclosed principle as well as the Grantor of the Concession to the 1st Respondent. This fact is evident and apparent on the face of the Concession Agreement (FAAN 1);
(v) SUIT NO: FHC/ABJ/CS/50/2010 was instituted against the Attorney General of the Federation who represents the Government of the Federal Republic of Nigeria and all its agencies including agencies dealing with aviation businesses in Nigeria;
(vi) Rather than containing an Arbitration agreement as falsely alleged by the Applicant, Article 22.2 of the Concession Agreement (FAAN 1) requires that the parties submit any dispute, controversy or claim arising between them out of, under or in connection with the Concession Agreement (FAAN 1) or in the interpretation of any of its provisions to be resolved amicably by the Coordinating Committee established pursuant to Article 22.1 .1 of the Agreement;
(vii) On 20th June 2008, the Plaintiff/1st Respondent caused a Notice of Submission of the breaches of the Concession Agreement (FAAN 1) and other breaches of contract by the Federal Government to the Coordinating Committee to be served on the Federal Government;
(viii) On Thursday 3rd July 2008, the co-ordinating committee, consisting of three representatives of the 1st Respondent and three representatives of the Federal Government (as provided in the Concession Agreement (FAAN 1), met and deliberated upon the disputes referred to it by the 1st Respondent, at the conclusion of which a unanimous verdict was entered in favour of the 1st Respondent. Attached and Marked Exhibit FB1 is the Report of the Co-ordinating Committee;
(ix) As a result of the continuous breach stated above, and the refusal of the Federal Government to comply with the decision of the Co-ordinating Committee, the 1st Respondent instituted SUIT No: FHC/ABJ/CS/50/2010 seeking the enforcement of its rights under the Concession Agreement as well as enforcement of the decision of the Coordinating Committee which was determined on 3rd March 2009 in favour of the 1st Respondent;
(x) The refusal of the Federal Government to comply with its obligations under the Concession Agreement (FAAN 1) and to adhere to the verdict of the Co-ordinating Committee has jeopardized the over N30,000,000,000.00 (Thirty Billion Naira) investment, in both debt and equity, made by the 1st Respondent in the MMA 2 Terminal;
(xi) The 1st Respondent’s suit in the lower court was for declaration and enforcement of rights and obligations of parties under the Concession Agreement on the one hand and also as confirmed by the verdict of the Coordinating Committee on the other hand, and not in respect of any monetary claim against any of the parties therein.
7. I know as a fact that the entire contents of Paragraph 3, particularly sub paragraphs (d), (e), (f), (g), (h), (i), (j), (k) and (l) are complete falsehoods calculated to mislead this Honourable Court.
8. I know as fact that, contrary to Paragraph 3(h) of the Applicant’s Affidavit in support, the 1st Respondent is in no way indebted to the Applicant. In fact, the Applicant is indebted to the 1st Respondent in the sum exceeding N11 billion (Eleven Billion Naira). Attached and marked Exhibit FB 2 is a letter written to the Applicant’s Managing Director informing him of the said indebtedness as at 4th January 2010.
9. I know as a fact that the trial at the Federal High Court was not conducted in the absence of the Applicant, being an agency of the Federal Government of Nigeria, it was ably represented by the Attorney General of the Federation.
10. I know as a fact and by virtue of my training and experience as a Legal Practitioner that the Attorney General of the Federation is a proper party to sue in an action involving the Federal Government of Nigeria and any of its agency.
11. I know as a fact that by the clear provisions of the Concession Agreement, it is only where the Co-ordinating Committee cannot resolve a dispute that the parties are required to refer the dispute to arbitration.
12. I know as a fact that the Co-ordinating Committee in fact resolved the dispute referred to it in favour of the 1st Respondent. The verdict of the Committee was not complied with and that led to the institution of this suit.
13. I was further informed by Kehinde Daodu, Counsel engaged in the conduct of this suit, at a meeting in our offices at No 48, Oakland Centre, Maitama at about 4pm on 1st July 2010, and I verily believe him as follows:
i.) That the Judgment was obtained against the Federal Government and is binding, not only on the Federal Government but all its agencies, however so called;
ii.) That having sued the Federal Government, which is the disclosed and known principal of the Applicant herein, the proper Defendant in the instant suit was before the Honourable Court;
iii.) The Attorney-General who was the only proper Defendant in this matter promptly lodged an Appeal against the Judgment of the Lower Court delivered in favour of the 1st Respondent. The Notice of Appeal filed by the 2nd Respondent is attached and marked Exhibit FB3;
That the grounds contained in the Applicant’s Proposed Notice of Appeal are neither weighty, nor are they recondite, substantial or arguable.
The Applicant ought to institute a separate action for the alleged indebtedness of the 1st Respondent to it as the purported indebtedness does not create an interest for it to appeal the judgment in SUIT NO: FHC/ABJ/CS/50/2010-
14. I verily believe that the instant application is a violent and brazen abuse of the process of this Honourable Court by the Applicant herein.
15. I know as a fact that the grant of the instant application would ultimately amount to a waste of valuable time and resources of this Honourable Court and would consequently prejudice the 1st Respondent.
16. I verily believe that it is in the interest of justice that the Applicant, being an agent of a disclosed principal, is estopped from re-litigating this matter as there has to be an end to litigation.”
There was an 8 paragraph reply by the Applicant to the 1st Respondent Counter Affidavit, pertinent paragraphs of the said reply are 4 to 6, reproduced as follows:-
“4. Contrary to the misrepresentations of facts contained in the Counter Affidavit of the 1st Respondent sworn to by one Boonyameen Babajide Lawal, I am informed by Mrs. Monica Alophonse, the Head of FAAN’s Legal Department in our office on 28th February, 2011 at about 10.00 am and I verily believe her as follows:
a) That contrary to the averments in Paragraph 6 (ii) of the 1st Respondent’s Counter Affidavit the reliefs sought by the 1st Respondent as Plaintiff in Suit NO: FHC/ABJ/CS/50/2009 were partly executory and partly declaratory and the decision of the Court on 3rd March, 2009 was an executory judgment.
b). That the averments in Paragraph 6 (ii) of the 1st Respondent’s Counter Affidavit that the reliefs sought by the 1st Respondent as Plaintiff in Suit NO: FHC/ABJ/CS/50/2009 were not wholly declaratory, is an admission that some of the reliefs were executory consequent upon which an executory judgment was delivered.
c) That the Applicant intends to appeal as an interested party against the judgment of the court and seeks leave to appeal the same.
d) That contrary to Paragraph 6 (iii) of the 1st Respondent’s Counter Affidavit, the Applicant is a creation of statute (Federal Airports Authority of Act Gap F5 LFN 2004) having a legal capacity to sue and be sued.
e) That contrary to Paragraph 6 (iv) of the 1st Respondent’s Counter Affidavit, the Applicant entered into the Concession Agreement for itself as an independent legal entity even though it is an agency of the Federal Government of Nigeria and the Federal Government of Nigeria was represented in the Concession Agreement by the Minister of Aviation.
f) That the Applicant who acted for itself and was privy to the contract ought to have been made a party to Suit NO: FHC/ABJ/CS/50/2009 even if the 1st Respondent as Plaintiff also sought to join the Attorney General of the Federation in the action.
g) That contrary to paragraph 6 (vi) of the 1st Respondent’s Counter Affidavit, Article 22 of the Concession Agreement particularly paragraph 22.2 requires parties to submit any dispute arising between the parties out of or in connection with or in interpretation of the provisions of the agreement to a coordinating Committee for amicable settlement of the dispute within 30 days.
h) That Article 22.3 further provides that in the event that parties are unable to resolve the dispute then the dispute shall be referred to mediation by a Panel of Experts.
i) That the Agreement further provides that where all these avenues have been explored and no settlement is reached, such dispute shall be finally settled by Arbitration.
j) That the Plaintiff without exploring the preconditions for settlement and in contravention of the Concession Agreement commenced an action at the Federal High Court.
k) That contrary to paragraph 6 (v) of the 1st Respondent’s counter Affidavit, the 1st Respondent deliberately excluded FAAN with whom they had a Concession Agreement which had an arbitration clause.
l) That the 1st Respondent abused the process of the court by conferring jurisdiction on the court in breach of treaty obligation and local law.
m) That contrary to the implication of the averments in the 1st Respondent’s Counter Affidavit, the parties to the Concession Agreement are not just the Federal Government and the 1st Respondent but also all other parties who executed the Agreement i.e. FAAN (the Interested Party/Applicant) and Stabilini Visioni Limited.
n) That the Co-ordinating Committee was not constituted in accordance with the provisions of the Concession Agreement as provided in paragraph 22.1.1 as same was not established by the parties as contemplated in the said paragraph 22.1.1.
o) That even the non-compliance by the Federal Government with the verdict of the Co-ordinating Committee was an indication that parties were not satisfied with the decision of the Committee and the 1st Respondent ought to have referred the dispute to the Panel of Experts as stipulated in the Concession Agreement.
p) That the institution of Suit NO: FHC/ABJ/CS/50/2009, by the 1st Respondent was an attempt to renege from the Arbitration Agreement by which it is bound.
q) That the averments of the 1st Respondent in paragraphs 6 (ix) and (x) are admissions that settlement was not reached and that this required that the matter be further referred to the Panel of Expert with Arbitration as the final option.
r) That contrary to paragraph 8, the 1st Respondent is indebted to the Applicant and this is in fact acknowledged by the heading of Exhibit FB2 relied upon by the 1st Respondent.
s) That contrary to paragraphs 8, 12 and 13 of the 1st Respondent’s Counter Affidavit the trial at the Federal High Court was conducted in the absence of Applicant and a decision which affected it was made by the Court.
t) That contrary to paragraph 13, the Applicant though not a party to the Suit NO: FHC/ABJ/CS/50/2009, is not a stranger as it was a party to the Concession Agreement and has filed an application before this Court for extension of time and leave to appeal.
5. That refusal to grant leave to appeal the judgment will work hardship on the Applicant.
6. That it is in the interest of the justice to grant the application.”
Upon the directive of the Court, the learned Counsel for the parties in this application filed and exchanged written addresses.
At the hearing of the application, the learned Counsel for the Applicant referred to the Motion on Notice filed on 29/6/2010. He also referred to the written address filed on behalf of the Applicant on 11/3/2011 and the reply on point of law deemed filed on 14/6/2011. He adopted the written address as his argument in this application.
The learned Senior Counsel for the 1st Respondent who opposed the application referred to the Counter Affidavit filed on 25/2/2011 and the Written Address filed on 24/3/2011. He adopted the said Written Address and urged the Court to dismiss the application.
The learned Counsel for the 2nd Respondent did not file any written address.
The learned Senior Counsel for the 1st Respondent has raised preliminary issues in his brief of argument.
He submitted that paragraphs 4(b), (d), (e), (j), (k), (l), (h), (o) and (p) of the Applicant’s reply to the 1st Respondent’s Counter Affidavit contains conclusion of facts and/or law and that it contravenes the provisions of Section 87 of the Evidence Act. He therefore urged that the offensive paragraphs be struck out.
He relied on the following cases:-
Dana Impex Ltd. vs. Awukam (2006) 3 NWLR Part 986 Page 544 at 461 – 562 Paragraphs H – A;
N.L.N.G. vs. ADIC Ltd (1995) 8 NWLR Part416 Page 677 at 699- 700 Paragraphs H-B;
Haliru vs. FRN (2008) All FWLR Part 425 Page 1697, 1717- 1718 Paragraph G – A;
NIPSS vs. Osigwe (2008) 6 NWLR Part 1083 Page 230 at 251 Paragraph C – A.
He finally submitted that the paragraphs of the Affidavit in Reply to the 1st Respondent’s Counter Affidavit referred to above is an abuse of the express provisions of the Evidence Act and he urged that it should be struck out.
In his response, the learned Counsel for the Applicant/Party Interested submitted that it is trite that an affidavit should contain depositions of fact. He went further that the entire paragraphs of the reply to the 1st Respondent’s Counter Affidavit are depositions of the things that actually existed and do not offend in any way the provisions of Section 87 of the Evidence Act or any provisions thereof.
He relied on the provisions of Section 78 and 86 of the Evidence Act.
It was contended on behalf of the 1st Respondent that paragraphs 4(b),(d), (e), j), (k), (l), (h), (o) and (p) of the Applicant’s reply to the 1st Respondent’s Counter Affidavit contains conclusions of either facts and/or law.
It is necessary at this stage to consider what the Evidence Act said on the issue of affidavit evidence.
Sections 78 and 86 of the Evidence Act provide that:-
“A Court may in any civil proceeding make an order at any stage of such proceeding directing that specified facts may be proved at the trial by affidavit with or without the attendance of the deponent for cross-examination, notwithstanding that a party desires his attendance for cross-examination and that he can be produced for that purpose.”
Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his personal knowledge or from information which he believes to be true.”
It is my view that the combined effect of Sections 78 and 86 of the Evidence Act set out above is that an affidavit shall contain a statement of facts which the deponent knows personally or which he derived from other information or documents.
And by virtue of Section 87 of the Evidence Act, an affidavit shall not contain extraneous matter by way of objection or prayer or legal argument or conclusion. Any paragraph of an affidavit, which offends against the provisions of Section 87 of the Evidence Act, will be struck out and if not struck out, it would be discountenanced by the Court at the conclusion of the case or when Judgment is delivered’
In the instant case, it would be necessary to carefully scrutinize the contents of the Applicant’s Reply to the Counter Affidavit of the 1st Respondent to ensure that they are not contradictory to the provisions of Sections 86 to 88 of the Evidence Act.
A careful examination of paragraphs 4(b), (k), (l), (n), (o) and (p) of the Applicant’s reply to the Counter Affidavit of the 1st Respondent earlier set out in this Ruling revealed that they are either legal arguments or conclusion and the said paragraphs offend against Section 87 of the Evidence Act. Accordingly, the said paragraphs are hereby struck out.
See:-Dana Impex Ltd & 1 Other vs. M. Awukam (Supra)
The learned Counsel for the Applicant in his written address formulated two issues for determination. The issues are set out as follows:-
“(1) Whether the application ought to have been made to the Court of Appeal in the first instance.
(2) Whether FAAN has satisfied the condition relevant to the grant of the prayers being sought.”
On the other hand the learned Senior Counsel for the 1st Respondent formulated two issues for determination. The issues are set out as follows:-
“(a) Whether the instant application seeking leave to appeal as an Interested Party is competent.
(b) Whether the Applicant has met the conditions laid down for the grant of this application.”
The issues formulated for determination on behalf of the parties in this application are similar, however the application shall be determined based upon the issues as formulated by the Applicant.
ISSUE NO 1
“Whether the application for leave to appeal as an Interested Party ought to have been made to the Court of Appeal in the first instance.”
Learned Counsel for the Applicant/Party Interested referred to Section 243 of the 1999 Constitution of the Federal Republic of Nigeria and Section 7(4) of the Court of Appeal Rules.
He submitted that the requirement for leave to appeal simpliciter by an Interested Person who was not a party to a proceeding before a High Court (in the present instance, the Federal High Court) is Constitutional and one which ordinarily ought to be to the High Court in the first instance. He relied on the case of:-
Kalu vs. Odili (1992) 5 NWLR Part 240 Page 130-
The learned Counsel stated that the decision to be appealed against was made on the 3rd day of March 2009 and the Applicant/Party Interested became aware of the Judgment sometimes in March 2010. He went further that the statutory period of 90 days had long expired.
He urged this Court to grant the application because the Applicant was not aware of the existence of the suit and did not participate in any way at the hearing. He relied on the case of:-
-Attorney General of the Federation v. Manufacturers Association of Nigeria & 18 Others (2008) 9 NWLR Part 1092 Page 251 at 262.
The learned Senior Counsel for the 1st Respondent in his response submitted that there is no prescribed time within which an Applicant is to seek leave within which to appeal as an interested party.
He relied on the case of:-
Re-Madaki (1996) 7 NWLR Part 459 Page 153 at 169 Paragraphs A-B.
He submitted that prayers 1 and 3 on the motion paper are incompetent and ought to be struck out.
He stated that in the event that leave is granted to the Applicant to appeal as an Interested Party it is permitted to file its notice of Appeal within three months permitted under Section 25 (2) of the Court of Appeal Act.
He also referred to Order 7 rule 4 of the Court of Appeal Rules 2007 and he contended that the Applicant failed to comply with the said Mandatory Provisions.
He submitted that the Applicant must either have filed the Application in the High Court first or disclose by affidavit the special circumstances that made it impossible or impracticable to do so.
He relied on the following cases:-
Kalu vs. Odili (Supra);
Owners of MV Arabella vs. N.A.I.C. (2008) 11 NWLR Part 1097 Page 182 at 205;
Zeek Oil Nig. Ltd vs. NDIC (2009) 7 NWLR Part 1141 Page 561 at 569 Paragraphs G-H;
Owena Bank Nig. Plc vs. N.S.E. Ltd (1997) 8 NWLR Part 515 Page 1 at 19;
Re-Madaki (Supra)
Bi-Courtney Limited vs. A.G. Federation RE: Ojemaie Investment Limited CA/A/141/M/09 (Unreported);
Bi-Courtney Limited vs. A.G. Federation RE-Safiyanu Dauda Mohammed & 5 Others (Unreported).
The learned Senior Counsel for the 1st Respondent went further in his argument that assuming without conceding that there is a statutory period within which an Applicant can appeal as an interested party and such period has lapsed, it is trite that for such application to succeed, the Applicant is duty bound to disclose and set forth in its affidavit, good and substantial reasons for failing to appeal or seek leave to do so within time.
He referred to the following cases:-
General Oil Ltd. vs. Oduntan (1990) Part 163 Page 423 at 439 Paragraphs C – D;
Ajisefini vs. DPP (1998) 8 NWLR Part 562 Page 447 at 451 Micro-Lion International Ltd vs. Gadzama (2009) 14 NWLR Part 1162 Page 481.
The learned Senior Counsel finally urged that the issue be resolved in favour of the 1st Respondent.
The learned Counsel for the Applicant/Party Interested in his reply on point of law submitted that even if the Rules of Court do not fix time limit for leave to appeal, an Applicant must appeal within reasonable time.
It was also submitted that the 1st Respondent’s reference and reliance on the cases of:-
Kalu vs. Odili (Supra);
Owena Bank Nig. Plc v. N.S.E. (supra);
Adeleke v. Oyo State House of Assembly (Supra)
in its submission that FAAN did not comply with the provisions of Order 7 rule 4 of the Court of Appeal Rules 2007 is as misconceived as it is misleading.
It was also urged on this Court to discountenance the submission by the learned Senior Counsel for the 1st Respondent regarding noncompliance with the rules of Court as well as cases cited therein.
Counsel for the Applicant relied on the following cases of:-
Ebe vs. C.P.O. (2008) 4 NWLR Part 1076 Page 189;
Ndoma-Egba vs. Government of Cross River State (1991) 4 NWLR Part 188 Page 773.
He finally urged this Court to grant this application.
There is no doubt about the fact that Suit No: FHC/ABJ/CS/50/2010 was instituted by the 1st Respondent (as Plaintiff at the lower Court) against the Attorney General of the Federation who represented the Government of the Federal Republic of Nigeria and all its agencies including businesses in Nigeria.
The present application by the Applicant/Party Interested is to seek leave to appeal against the Judgment delivered on 3rd March 2009 in the Suit mentioned above.
It is settled law that where the leave of the Court is required for the exercise of a right of appeal, obtaining such leave becomes a condition precedent to the exercise of that right of appeal, a failure to obtain leave where it is required will render the appeal incompetent as the appellate Court will be divested of any Jurisdiction to entertain the matter.
The issue here is whether the application for leave to appeal as an interested party ought to have been made to the Court of Appeal in the first instance.
Pursuant to Section 243 of the 1999 Constitution of the Federal Republic of Nigeria, a person having interest in a matter must seek leave of either the lower Court i.e. High Court or the Court of Appeal before he can file an appeal.
The said Section 243 of the 1999 Constitution of the Federal Republic of Nigeria is hereby reproduced as follows:-
“Any right of Appeal to the Court of Appeal from the decision of the Federal High Court or a High Court conferred by this Constitution shall be:-
(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or High Court or Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney General of the Federation or the Attorney General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or person as may be prescribed;
(b) Exercised in accordance with any act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”
The above provisions of Section 243 of the 1999 Constitution of the Federal Republic of Nigeria has shown that there is no prescribed time within which the Applicant is to seek leave within which to appeal as an interested party.
The above view is fortified by the decision of the Supreme Court in Re-Madaki (Supra) Page 164 Paragraphs A – B where it was held among others that:-
“Neither the Constitution nor the Court of Appeal Act or the Court of Appeal 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. So that when the Applicant/Respondent brought his application in the Court below seeking – “Extension of time within which to apply for leave to appeal…” he misconceived the procedure and acted wrongly to have asked for extension of time to seek leave to appeal as an interested party.”
It is my view that by the provisions of Section 243 of the 1999 Constitution of the Federal Republic of Nigeria only a party to civil proceedings can appeal to the Court of Appeal without any inhibition on his capacity to do so. Any other person who has interest in a case but is not a party to the case cannot appeal in the proceedings until he obtains the leave of either the High Court from which the case is being appealed or the Court of Appeal to which Appeal is to be brought. Section 243(b) provides that such a right to appeal must be exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal. The section also provides that a party, who desires to appeal as an interested party, has the option to obtain the necessary leave, prescribed for doing so, on application to either the High Court which decided the case or the Court of Appeal. The manner in which to make the application is provided by both the Court of Appeal Act 2004 and the Court of Appeal Rules 2007.
In the Court of Appeal Rules 2007, there is the mandatory provision of Order 7 rule 4 which provides that:-
“whenever under these Rules an application may be made either to the Court below or to the Court, it shall not be made in the first instance to the Court except where there are special circumstances, which make it impossible or impracticable to apply to the court below.”
It is my view that the above rule is a strict liability rule and failure to comply with it is fatal unless there is of course acceptable, cogent compelling and legally cognizable explanation for which the rule could not be complied with.
A careful perusal of the Affidavit in Support of the Application, the Counter Affidavit i.e. Affidavit in Opposition by 1st Respondent, the Reply to the 1st Respondent’s Counter Affidavit and the written addresses by both Counsel revealed that the Applicant/Party Interested never applied to the lower Court in the first instance even though the record of proceedings is still at the lower Court.
The special circumstance disclosed by the Applicant/Party Interested is that by the time the Applicant became aware of the Judgment against it dated 3/3/2009, the statutory period within which to appeal had elapsed. The above reason by the Applicant is not satisfactory.
In Zeek Oil Nig. Ltd vs. NDIG (2009) 7 NWLR Part 1141 Page 561 at 569 Paragraphs G – H it was held among others that:-
“It is settled law that rules of Court for doing an act must be obeyed. Where there is non-compliance the reason must be a good and satisfactory reason, he cannot be indulged by the Court.”
This application under consideration was not filed in the Federal High Court as provided for by the law, it was filed in this Court in the first instance. The reason disclosed in the affidavit in support of the application as special circumstance stated earlier in this ruling does not in my humble view qualify as special circumstance.
My view above is fortified by the decision of the Supreme Court in the case of:-
Owena Bank Nig. Plc vs. Nigerian Stock Exchange Ltd (1997) 7 SCNJ Page 160 at 178 where it was held thus:-
“Coming to the incompetency of the Respondents application before the Court below, the principle is that the fact that a suit in which he had interest was pending but that he did not know and was not made a party thereto, are facts which if proved, would entitle an applicant for leave to appeal as a person interested to be let in to so appeal either by the High Court or the Court of Appeal but do not qualify as special circumstances to warrant his filing the application first in the Court of Appeal rather than in the High Court enjoined by Order 3 Rule 3(4) of the Court of Appeal Rules. See – Ojukwu us. Governor of Lagos State (1985) 2 NWLR Part 10 Page 806…. Implicit in the words of Order 3 Rule 3(4) is that an Applicant has no right to choose or elect whether to apply first in the High Court or in the Court of Appeal. By that rule, the Applicant’s first port of call is the High Court, unless he can show special circumstance for any departure from the express words of that rule which will entitle him in that regard to apply straight to the Court of Appeal (emphasis is mine)-
See also the following cases:-
Re-Madaki (Supra)
Bi-Courtney Limited vs. A.G. Federation, RE: Ojemaie Investment Limited CA/A/1 41lM/09 (Unreported);
Bi-Courtney Limited vs. A.G. Federation RE-Safiyanu Dauda Mohammed & 5 Others CA/A//141/M/09 (Unreported).
It was submitted by the learned Senior Counsel for the first Respondent that the case of Adeleke vs. Oyo State House of Assembly (Supra) relied upon by Counsel for the Applicant is not relevant because in the instant case no record of appeal has been compiled or transmitted whereas in Adeleke vs. Oyo State House of Assembly at the time the application was filed in that Court the record of the lower Court had been transmitted to the Court of Appeal. I agree with this submission by learned Senior Counsel for the 1st Respondent.
Also in the case of A.G. Federation vs. M.A.N. (Supra) relied upon by Counsel for the Applicant, the issue of non-compliance with the provisions of Order 7 rule 4 of the Court of Appeal Rules 2007 was neither raised nor pronounced upon by the Court.
Assuming I am wrong in my views above, if this application is now to be considered on the ground that there is a statutory period within which an Applicant can appeal as an interested party and that such period has lapsed, it is my view that for such an application to succeed, the Applicant is duty bound to disclose and set forth in its affidavit good and substantial reasons for failing to appeal or seek leave to appeal within time.
In General Oil Ltd. vs. Oduntan (Supra) it was held that:-
“the primary duty of an Applicant seeking extension of time within which to appeal is to place before the Court such materials as may be adjudged sufficient to explain the cause of the delay to appeal within specified period and if this primary duty is not discharged, the fact that the ground of appeal is of great interest would not avail an Applicant who has been guilty of inordinate delay in bringing the application.”
See also the following cases:-
Ajisefini vs. DPP (Supra);
Micro-Lion International Ltd vs. Gadzama (Supra).
The Applicant in paragraph 3(i) and (j) of its affidavit earlier set out in this Ruling stated that its failure to file that application was due to not being aware of the existence of the Suit and late receipt of approval to appeal against the Judgment of the lower Court which was given on 23rd March 2010.
But this application was not filed until 29/6/2010. It was not explained in this Affidavit in support of the application the reasons for the delay between 23/3/2010 and 29/6/2010 in bringing the application.
In my humble view the Applicant has not been diligent enough to enable it benefit from the discretion of this Court. An application for extension of time within which to appeal is not granted as a matter of grace, but on very good and substantial grounds shown in the Applicant’s affidavit.
Where good reasons do not exist the application will be refused.
See:-
-General Oil Ltd vs. Oduntan (Supra):
-Alagbe vs. Abimbola (1978) 2 S. C. Page 39.
In the circumstance, it is my view that the Applicant has not shown any such good and substantial reasons which would require this Court to exercise its discretion in its favour.
In view of the foregoing, this issue No. 1 is hereby resolved in favour of the 1st Respondent and against the Applicant/Party Interested.
ISSUE NO.2
Whether FAAN has satisfied the conditions relevant to the grant of the prayers being sought.
The learned Counsel for the Applicant stated that the application is for leave of Court to appeal against the Judgment of the lower Court dated 3rd March 2009.
He submitted that the law is that the Applicant must:-
(a) Give good and substantial reasons for failing to appeal or seek leave to do so within time and,
(b) File the proposed grounds of appeal which prima facie show good cause why the appeal should be heard.
He relied on Order 7 rule 10 of the Court of Appeal Rules and the case of:-
-Attorney General of the Federation v. Manufacturers Association of Nigeria & 18 Others (supra).
It was stated on behalf of the Applicant that it was not aware of the existence of the suit before the lower court i.e. suit No: FHC/ABJ/CS/50/2009 and that it was not made a party. Therefore that it is entitled to leave to appeal as a person interested.
Learned Counsel for the Applicant referred to the Notice of Appeal Exhibit FAAN 5, and contended that the declarations against the Applicant in his absence breached its right to fair hearing under Section 36 of the 1999 Constitution as amended.
It was submitted on behalf of the Applicant that any breach or absence of fair hearing in any proceeding automatically vitiates the proceedings and render same null and void. Reference was made to the case of:-
Ejiogu vs. Irona (2009) 4 NWLR Part 1132 Page 531.
The learned Counsel urged this Court to grant the Applicant the leave being sought. He relied on the case of:-
Kalu vs. Odili (Supra);
Adeleke vs. Oyo State House of Assembly (Supra).
The learned Senior Counsel for the 1st Respondent submitted that in an application such as this one the sole and narrow issue before the Court in determining the application is whether the Applicant has been able to establish a sufficient interest in the subject matter of the Suit before the trial court to deserve a grant of this application.
He went further that the legal consideration is whether the Appellant has placed before the Court the material facts of probative value that show a legally recognizable interest that would warrant this Court their discretion in favour of the Applicant and not argument as to the strength of their case.
He also stated that the Applicant is an agency of the Federal Government. He went further in his argument that the interest sought to be protected by the Applicant is one that has been vehemently fought by the second Respondent at the lower Court.
He relied on the following cases:-
Nigeria Re-Insurance Corporation vs. Cudjoe (2008) All FWLR Part 410 Page 1532 at 1551 – 1552;
– Essi vs. Nigerian Ports Plc (2006) All FWLR Part 311.
It was also contended on behalf of the 1st Respondent that the Attorney General is a proper party to be proceeded against in an action against the Federal Government and all or any of its organs.
He relied on the following cases:-
-Attorney General Kano vs. Attorney General Federation (2007) 6 NWLR Part 1029 Page 164 at 192;
-Attorney General Anambra vs. Attorney General Federation (2007) 12 NWLR Part 1047 Page 4 at 47.
The learned Senior Counsel for the 1st Respondent finally submitted that the Applicant has not established before this Court that he has a real interest different from that being protected by the 2nd Respondent. He urged that the application should be dismissed.
In his reply on point of law, learned Counsel for the Applicant submitted that there was no paragraph in the Counter Affidavit of the 1st Respondent which suggested that there was undue delay in bringing the application for leave to appeal.
He also contended that the submission by learned Senior Counsel for the 1st Respondent that FAAN being an agent of the Federal Government was ably represented by the Attorney General of the Federation at the Court below should be discountenanced.
He finally urged this Court to grant this application.
Under Order 7 rule 10 (2) of the Court of Appeal Rules 2007, Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard.
See the following cases:-
Olowookere vs. African Newspapers (1993) 5 NWLR Part 295 Page 583 at 601;
Registered Trustee G.A.C. vs. Uffiem (1998) 10 NWLR Part 569 Page 312 at 319.
Flowing from Order 7 rule 10 (2) of Court of Appeal Rules referred to above is the fact that for the application for 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 to succeed the Applicant must show his legal interest and the following conditions must co-exist.
(a) Good and substantial reasons for failure to appeal within the period prescribed by the appropriate rules of Court and;
(b) Ground of Appeal which prima facie show good cause why the appeal should be heard.
See the following cases:-
Ukwu vs. Bunge (1997) 1 NWLR Part 518 Page 527; Ibodo vs. Enaroha & Others (1980) 5 – 7 S. C. Page 42 at 51.
The above stated conditions must be complied with before the Court would exercise its discretion in favour of the Applicant.
See the case of:-
FMBN vs. Savannah Securities Ltd 15 NWLR Part 689 page 152 at 153.
It was submitted on behalf of the Applicant that the Applicant must show a legally cognizable interest which would ordinarily have entitled it to be joined to the Suit had it been aware of its existence as legal requirement for the grant of leave to appeal as an Interested Party.
In this regard, the learned Counsel for the Applicant referred to the Affidavit in support of the application which showed that its interest germinated from the Concession Agreement which was executed with the plaintiff on 23rd of April 2004 and which was subject of the Originating summons dated 23rd January 2009 by which suit No: FHC/ABJ/CS/50/2009 was commenced and prosecuted. The concession Agreement was exhibited as Exhibit FAAN 1 to the Affidavit in Support of the Application.
The learned Senior Counsel for the 1st Respondent submitted that the legal interest sought to be protected by the Applicant is one that has been vehemently fought and astutely defended by the 2nd Respondent at the lower Court.
It is important to take note at this juncture that the Applicant at all material times is an agency of the Federal Government.
In Nigerian Re-Insurance Corporation vs. Cudjoe (2008) All FWLR Part 414 Page 1532 at 1551 – 1552 it was held as follows:-
An agency can be seen as an organ of the Federal Government …however the factors which determine whether or not an organization is an agent of the Federal Government are:-
(1) Control, or
(2) Whether the functions of the organization are aimed at effecting policy of the Federal Government. See Federal Government of Nigeria v. Oshiomole (2004) All FWLR Part 209 Page 972, or (2004) 3 NWLR Part 860 page 305.
…It is my conclusion from the foregoing provision that the Applicant is subject to the control of the Federal Government; it is an organ of the government and consequently an agency of the Federal Government.”
Also in the case of:-
Essi vs. Nigerian Ports Plc (2006) All FWLR Part 311 Page 1909 at 1922, the Nigerian Ports Plc established by a statute, a body corporate, with perpetual succession and a common seal, having the power to sue and be sued in its corporate name and to acquire and hold and dispose of lands, just like the Federal Airports Authority of Nigeria was held to be an agency of the Federal Government.
In view of the foregoing it is my view that the Attorney General is a proper party to be proceeded against in an action against the Federal Government and all or any of its agencies. By implication, the Federal Government and its agencies have their interests adequately represented by the Attorney General of the Federation being the Chief Law Officer of the Federation and Minister of Government of the Federation whose office was created by Section 150 of the Constitution of the Federal Republic of Nigeria 1999.
The Supreme Court in the case of:-
-Attorney General Kano vs. Attorney General Federation (2007) 6 NWLR part 1029 page 164 at 192 made a notable pronouncement to the effect that:-
“The Defendant is the Attorney General of the Federation. It is not in dispute that the Attorney General of the Federation can be sued as a Defendant in all matters in which a claim can properly be made against the Federal Government or any of its authorized agencies arising from any act or omission complained of.”
See also the following cases:-
-Attorney General, Anambra vs. Attorney General Federation (2007) 12 NWLR Part 1047 Page 4 at 47;
-Ezomo vs. A. G. Bendel (1986) 4 NWLR Part 36 at Page 448.
The question that comes to my mind at this juncture are:-
i. Is the Applicant not part of the Federal Government, by virtue of being its agency or;
ii. Can its interest be different from that of the Federal Government?
iii. What other interest does the Applicant intend to advocate in the substantive appeal that has not been argued at the lower Court or cannot be argued by the Attorney General in the appeal against the Judgment by the lower Court?
My answers to the above questions are that the Applicant is an agency of the Federal Government and as a result it is a part of the Federal Government. And its interest cannot be different from that of the Federal Government. There is also no interest which the Applicant can advocate in the appeal which the Attorney General cannot argue and protect. In the circumstance, it is my view that the Attorney General of the Federation being the Chief Law Officer is at all times responsible for conducting the case of the Federal Government and its agencies whenever their interest is in issue.
Consequent upon the foregoing it is my view that the Applicant has not been able to establish any superior legally recognizable interest that would enable this Court exercise its discretion in the Applicant’s favour.
The next to be considered is whether the Applicant has given good and substantial reasons for failing to appeal or seek leave to do so within time.
The Applicant in giving reasons for failure to appeal or seek leave to appeal within time stated in paragraph 3(i) of the affidavit in support of the Application that it was not aware of the existence of the Suit No: FHC/ABJ/CS/50/2009 before the lower court and as a result it could not participate at the hearing. It was stated further that the Applicant sought for authorization to enable it appeal against the Judgment delivered in the case on 3rd March 2009. The authorization was given on 23rd March 2010 by a letter attached as Exhibit FAAN 4.
It looks absurd that after the authorization to appeal, the Applicant did not file this application until 29/6/2010.
The affidavit in support of the application did not explain the reason for the delay till 29/6/2010 in bringing this application despite the fact that authorization was given to the Applicant to proceed and appeal since 23rd March 2010.
After a careful perusal of the affidavit in support of the application, the counter affidavit i.e. the affidavit in opposition, the Applicant’s reply to the 1st Respondent’s Counter Affidavit and submissions of counsel for the parties, it is my view that the Applicant has not shown good and substantial reasons for failure to appeal or seek leave to appeal against the Judgment of the lower Court. Equity will not aid an indolent applicant.
In Ajisefini vs. DPP (Supra) it was held that the reasons for the delay in bringing an application out of time must be satisfactorily explained.
Where good reasons do not exist the application will be refused.
See also Micro-Lion International Ltd. vs. Gadzama (Supra).
An application for extension of time is not granted as a matter of grace as I stated earlier but it is granted on the good and substantial grounds shown in the Applicant’s affidavit. Where the Applicant fails to satisfy the first requirement of Order 7 Rule 10(2) of the Court of Appeal Rules 2007 which is still the same in Court of Appeal Rules 2011, it will be unnecessary for the Court to consider the second requirement, which had to do with good and arguable grounds of appeal. In other words, for an Applicant in an application for extension of time to appeal, to succeed it/he must convince the Court that the two requirements under Order 7 rule 10(2) of the Court of Appeal Rules 2007 which is still the same in Court of Appeal Rules 2011, have been met.
In the instant case under consideration, the Applicant failed to satisfy the first condition as required under Order 7 Rule 10(2) of the Court of Appeal Rules 2007 by not showing any good and substantial reason explaining its failure to appeal within the prescribed time. Since the two requirements under Order 7 rule 10(2) must co-exist conjunctively, the Applicant has therefore not satisfied the condition relevant to the grant of the prayers being sought.
See the following cases:-
-Bucknor vs. Kehinde & Others (2007) 1 NWLR Part 1016 page 582;
-Attorney General Lagos State vs. V. Akinola All FWLR Part 396 Page 720 at 734.
This Issue No. 2 is also resolved in favour of the 1st Respondent against the Applicant/Party Interested.
With the resolution of the two issues in this application against the Applicant/Party Interested, therefore the application lacks merit and it is hereby dismissed.
In order to promote reconciliation between the Applicant and the 1st Respondent, I will not award any cost.
PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading in draft, the Ruling just delivered by my learned brother, Bada JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
I find no merit in this application in which I join my brother in dismissing same. There shall be no order as to cost.
REGINA OBIAGELI NWODO, J.C.A.: I had the privilege to read in advance the ruling just delivered by my learned brother JIMI OLUKAYODE BADA, JCA. I am in complete agreement with the reasoning contained therein and the conclusion arrived thereat.
The applicant seeking leave to appeal as an interested party must show that he is a person interested and that the decision of the trial judge prejudicially affected that interest.
See Society Generale Bank (Nig) Ltd vs. Afekoro (1999) 11 NWLR (pt.628) SC 521
Looking at Exhibit FAAN 2 annexed to the affidavit in support of application which is the judgment of the trial court, it is obvious from the reliefs sought therein that the subject matter revolved on the concession agreement exhibited as exhibit FAAN 1. On page 6 of that exhibit is the description of the word “Grantor” as follows:
“Means the FGN and FAAN acting jointly or severally for the purposes of this agreement”
From the above reproduced definition, FGN and FAAN are to act jointly or severally. The Judgment of the court below was against the Attorney General of the Federation. That is the 2nd respondent who can be sued as a defendant in all civil matters in which a claim can properly be made against the Federal Government or any of their authorized agencies. See Ezomo vs. AG., Bendel State (1986) 4 NWLR (pt.36) 448 A-G Kano State vs. AG Federation (2007) 6 NWLR (pt.1029) SC 164
The 2nd respondent was a proper party to be proceeded against in an action against the Federal Government and its agencies. The peculiar nature of this case is that the concession agreement specifically described the grantor as Federal Government of Nigeria and FAAN. The present applicant as party interested FAAN being an agency under the Federal Government had his interest represented by the 2nd respondent as the chief law officer of the Federal Government.
Therefore, the applicant has not shown any legally recognizable interest different from the one already defended in the court below. If he cannot be joined as a party in the court below his application at this level cannot be granted.
See Gbadamosi vs. Kabo Travel Ltd (2000) 8 NWLR (Pt.668) Page 243.
For the forgoing and the fuller reason in the lead ruling I also refuse the application and same is accordingly dismissed. I abide by all consequential order.
Appearances
MR. M. OKOJIE with him is N. OKONTA for the Applicant/Party Interested.For Appellant
AND
MR. OLAWALE AKONI SAN with him are K. E. AKANBI, B. B. LAWAL,
F. BADMUS (MISS) and P. OGUNSUYI (MISS) for the 1st Respondent.
MR. FESTUS JUMBO for the 2nd Respondent with him is JUDITH M. GADUK.For Respondent
