Bi-Courtney Group may have moved a step closer to reclaiming the General Aviation Terminal of the Murtala Muhammed Airport Terminal Two (MMA2), Lagos, which was taken over in controversial circumstances by the Federal Airports Authority of Nigeria (FAAN), in purported violation of the concession agreement between both parties.
Justice I.N. Buba of the Federal High Court, Lagos, last Monday, in Suit No.FHC/1442/2011, struck out FAAN’s application to restrain Bi-Courtney from taking possession of the GAT, despite the Appeal Court judgment, which affirmed Bi-Courtney’s ownership of the terminal.
According to court documents, FAAN filed the application on December 5, 2011, seeking several reliefs against Bi-Courtney “in respect of the use and operation of the Murtala Mohammed Airport Domestic Terminal 2, Ikeja, Lagos, by the defendant (Bi-Courtney) pursuant to a concession agreement executed between the Federal Government and the defendant”.
The essence of the suit by FAAN was “to restrain the defendant from taking over the control of the General Aviation Terminal of the airport”.
The plaintiff (FAAN), the documents further revealed, also filed an ex parte application seeking certain interim injunctive reliefs which was granted by the court on December 6, 2011.
Bi-Courtney, however, filed an application seeking an order of court to set aside the interim order granted to FAAN on the ground that it concealed and/or failed to disclose material facts to the court in its application upon which the ex-parte interim order of December 6, 2011, was granted. The court delivered a ruling on February 27, 2012, setting aside the interim order.
Bi-Courtney, subsequently, filed a Notice of Preliminary Objection dated April 10, 2012, challenging the competence of the suit and seeking “an order of court to strike it out for failure to fulfil condition precedent as contained in the concession agreement between the parties or alternatively an order dismissing the suit for being an abuse of court process”.
Bi-Courtney contended that FAAN instituted the action “without any resort to the dispute resolution mechanism provided in the concession, which is to the effect that any dispute arising from the agreement must first be referred to the Co-ordinating Committee for resolution”.
It also argued that the suit was “an abuse of court process in the sense that the reliefs sought were substantially the same as those already determined one way or the other by the Federal High Court in Suit No. FHC/ABJ/CS/50/2009, the Court of Appeal, Abuja and same has been a subject of appeal to the Supreme Court by FAAN”.
In his ruling, Justice Buba held that the FAAN failed to comply with a condition precedent by commencing the suit without first referring the dispute to the Co-ordinating Committee in accordance with the terms of the Concession Agreement.
The court, however, refused the relief seeking to dismiss the suit on the ground that the suit having already been declared incompetent cannot be subsequently dismissed. It, therefore, struck it out.
The issue of the ownership of the GAT has been a subject of numerous litigations, including five appeals, all of which have been decided in favour of Bi-Courtney; the most recent being the ruling of the Court of Appeal, Abuja, which affirmed the company’s ownership of the disputed terminal.
