Tuesday, 11 December 2012 00:00
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Our predicament over GAT, by Bi-Courtney

The newly inaugurated General Aviation Terminal (GAT) remodeled and redeveloped by the Ministry of Aviation, has been a subject of controversy between the Federal Airports Authority of Nigeria (FAAN) and Bi-Courtney Aviation Services Limited (BASL), concessionaire of the Murtala Muhammed Airport Terminal Two (MMA2), Lagos.

By consistently claiming that the GAT belongs to it, the Ministry of Aviation has clearly breached parts of the simple agreement willingly inked by its officials with BASL.

Many Nigerians know that when you signed an agreement, it behooves you to obey that agreement. If there is any aspect you disagreed with, the next port of call should be the court, and when the court gives its judgement, the best thing to do is to obey the judgement.

However, in the case of the ministry and FAAN, they signed an agreement, they reneged on certain aspects of it, we went to court and judgements were entered in our favour. Unfortunately, all the court judgements have been disobeyed.

Two major issues are in contention over the agreement they signed with BASL on the GAT and MMA2. One is the ownership of GAT and the second is the tenure of our concession, which is 36 years. Without mincing words, GAT belongs to Bi-Courtney by virtue of the agreement the ministry and FAAN signed with us.

Article 2.2 of the agreement states that BASL has responsibility for processing all scheduled domestic traffic in and out of Lagos. It further states: “Save as otherwise provided for in Articles 17.4 and 20.2, the concession granted to the concessionaire pursuant to this agreement is exclusive.

The Grantor (FAAN) shall ensure that no part of the concession shall be granted to any other party unless the concessionaire (Bi-Courtney) is in breach of any of the obligation under the agreement that would give rise to a right of termination by the Grantor under Article 17 or is in breach of Nigerian law in relation to the concession.

The Grantor guarantees and assures that it would not build any domestic terminal in Lagos State and that no existing terminal will be materially improved throughout the concession period that would compete with the concessionaire.”
The Coordinating Committee, set up to resolve all the disputes arising from the agreement, had long ago resolved the dispute over GAT in favour of Bi-Courtney after series of meetings attended by all the representatives of FAAN and Bi-Courtney thus: “The Committee unanimously resolves the issue in favour of the Concessionaire (BASL) and directs the Grantor (FAAN) to immediately deliver possession of the General Aviation Terminal at its Murtala Muhammed Airport, Lagos, to the Concessionaire for the purpose of extending operations at MMA2.”

The resolution of the Coordinating Committee of the GAT dispute is in tandem with what Justice Anwuli Chikere of the Federal High Court resolved in our favour as far back as March 3, 2009, in a matter brought before her by BASL, in which she said: “It is my considered view that if any right has been granted either in principle or otherwise, such is in breach of provisions of Article 2.2 (c) and 3.2 (c) of the Agreement.

Accordingly, the Federal Government and its agents/agencies howsoever called/named are hereby restrained from developing and/or constructing, establishing, concessioning, licensing, authorising, permitting the development, construction, establishment, concessioning and/or licensing any other airport or airport terminal in Lagos State other than MMA2 without giving the first right of refusal and consideration to the plaintiff.”

Even if they are under the illusion that GAT is theirs, they ought to have still given us the option of first refusal as stipulated in the agreement and the court judgement.

This judgement was reaffirmed by Justice G. K. Olotu, also of the Federal High Court, on July 3, 2012, and the Court of Appeal, Abuja Division, on June 13, 2012, in which the panel of justices, led by Justice Jimi Olukayode Bada dismissed FAAN’s appeal of the judgement of the Federal High Court for lack of merit.

FAAN had, through an application, sought orders to extend the time within which to appeal as ‘Party Interested’ against the judgement of the Federal High Court in the case between Bi-Courtney and the Attorney-General of the Federation (AGF).

The agency went to the Court of Appeal on the grounds that it is a party to the Concession Agreement dated April 24, 2003, which is the subject-matter of a case between Bi-Courtney and the AGF that was settled in favour of the firm at the Federal High Court on March 3, 2009. The agency argued that it was not made a party to the suit that was said to have affected its interest, rights, and obligations under the Concession Agreement.

But, dismissing FAAN’s application, the appellate court submitted that the authority “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 an 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 Court also faulted FAAN’s reasons for failure to appeal or seek leave to appeal within the 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.

The appellate court added: “The Applicant sought for authorisation to enable it appeal against the judgement delivered in the case on 3rd March, 2009. The authorisation was given on 23rd March, 2010 by a letter attached as Exhibit FAAN 4.

“It looks absurd that after the authorisation 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 authorisation 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 judgement of the lower court. Equity will not aid an indolent applicant.”

Although the ministry and FAAN have claimed severally that they have gone to the Supreme Court over the Appeal Court judgement, we want to tell Nigerians that this is far from the truth, because we have not received any paper from the apex court on the case.

If they have gone to the Supreme Court as claimed, we should be aware. We challenge them to publish the papers they filed at the apex court in at least two national dailies to prove that they are actually there.

On the duration of our concession, which was Issue Number 4 resolved by the Coordinating Committee, we make bold to say that the agency and the ministry’s insistence on 12 years is absurd, as the concession tenure has long been settled at 36 years.

On October 12, 2006, FAAN through a letter to BASL, dated October 12, 2006 and signed by Dr. Jaiye Oyedotun, Director of Commercial and Business Development on behalf of the Managing Director of the authority, entitled: “Re: Tenure of new MMA Domestic Terminal By Messrs Bi-Courtney On BOT Business Arrangement” wrote: “On the basis of the KPMG report, which recommends thirty-six years as the tenure for the concession, FAAN is offering BCC Limited a concession period of thirty-six (36) years on the New MMA Domestic Terminal, being developed by Messrs BCC Limited on Build, Operate and Transfer (BOT) business arrangement.”

Based on FAAN’s letter, Bi-Courtney accepted the offer via a letter dated October 13, 2006, and signed by Dr. Adeniyi Odunlami. In the letter, Bi-Courtney wrote: “We acknowledged receipt of your letter dated October 12, 2006, offering us a concession period of 36 years on the new Murtala Muhammed Airport Domestic Terminal that is being developed by us under a BOT arrangement. We write to formally accept your offer of a concession tenure of 36 years on the new Murtala Muhammed Airport Domestic Terminal.”

And in resolving the dispute engineered by FAAN over the 36-year tenure and based on the facts before it, the Coordinating Committee said: “The Committee notes that on 2nd February, 2007, parties to the Agreement signed an Addendum by which certain provisions of the Agreement were amended. Specifically, in Article 1 of the Addendum, the parties mutually and positively agreed as follows ‘That Article 2.3 of the Concession Agreement be amended and is hereby amended as follows: 2.3, concession Period: the Concession Period shall start on the Start Date and last until the thirty-six (36th) anniversary of the Start Date unless otherwise modified in accordance with this agreement…

“Decision: Accordingly, the Committee hereby unanimously resolves this issue in favour of the Concessionaire. The Committee affirms that the length of the concession period granted to the Concessionaire by the Grantor is 36 (Thirty Six) years from the anniversary of the Start Date as defined in the Concession Agreement.” All the representatives of both parties signed this and other resolutions of the committee.

The Ministry of Aviation and FAAN have also always argued that “most of the cases and attempts at arbitration were conducted without the full incorporation and participation of FAAN…” But, they know that this is not true, as they were fully represented by senior lawyers, who are still alive today, at every attempt at arbitration and in all court cases.  
They also say that we parade fake documents to argue our case. Nigerians should tell them to bring out their own genuine documents signed by their representatives at all the meetings and court cases in which both parties were present.

Then, another common language they speak regularly is that the GAT was developed in “public interest”. The question is which public interest in a matter already decided by the courts? Would it not have been better if this line of escapist argument is pursued in the court of law?

Those in the know can attest to the fact that Bi-Courtney was not the preferred bidder for rebuilding the then burnt local airport, but the reserved bidder. It was a year after the bid was won by Sanders Ventures Limited without anything concrete on ground that Bi-Courtney was invited to take over the project.

And today, Bi-Courtney has succeeded in making MMA2 the first and most successful Public Private Partnership (PPP) project in Nigeria and we are aware that many Nigerians are proud of this unique achievement. 

• Omolale- Ajulo is the Public Relations Officer (PRO) of BASL.