FG, Bi-Courtney in Renewed War over MMA2

22 Apr 2012

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Stella Oduah

From Tobi Soniyi             in Abuja
A fresh crisis is now rocking the development of the aviation sector as the federal government has gone to court to drastically curtail the powers of Bi-Courtney Limited the company to which the development of the domestic terminal of the Murtala Mohammed Airport, Ikeja was concessioned on  April 24, 2003.

Whereas Bi-Courtney is claiming that the agreement allows it to operate the MMA2 for 36 years, the federal government is of the view that the agreement covers only 12 years.

The federal government is now making a desperate move to set aside a Federal High Court judgement, which had already upheld Bi-Courtney’s claim that the agreement was for a 36-year period.

Government argued that the original term of the agreement between it and Bi-Courtney entered into on April 24, 2003 was for 12 years.
Government also said that by an alleged addendum of February 2, 2007 purportedly extended the tenure of the concession to 36 years.
It said that section 2(1) and (2) of the Infrastructure Concession Regulatory Commission (ICRC) Act 2005 subjected concessions to the prior approval of the Federal Executive Council (FEC).

It also said: “However, the approval of FEC for the extension of the agreed tenure of 12 years to 36 years was not obtained.
“That the substitution of the original term of 12 years for a new term of 36 years is inimical to the growth and development of the country’s air transport industry and against the national interest taking into consideration the provisions of the Concession Agreement between the Federal Government and Bi-Courtney.” Under the agreement, Bi-Courtney was awarded the concession for the re-development of the MMA2 to design, build and operate for an agreed number of years to recoup its investment therein.

Based on the agreement, MMA2 valued at about N39 billion was completed and was commissioned by the then President, Olusegun Obasanjo under which Bi-Courtney promoter, Chief Wale Babalakin SAN, enjoyed tremendous patronage/support.
However, trouble started for Bi-Courtney shortly after Obasanjo left the scene. Many people in government felt that Bi-Courtney was unduly favoured and efforts began in earnest to undermine the concession agreement.
Bi-Courtney claimed that it the Federal Government violated the terms of the agreement by allowing airlines to operate domestic flights to and from Lagos from the airport other than MMA2 and that the Federal Government by allowing Virgin Nigeria and Arik Airways to operate domestic flights from Lagos was in violation of the agreement. 

Parties Shun Talks on Alliance against PDP  The Federal Government was represented by Federal Aviation Authority of Nigeria (FAAN) and the Nigerian Civil Aviation Authority (NCAA) disagreed.

Several meetings were held to resolve the dispute but to no avail. Consequently, Bi-Courtney invoked Article 22.11 of the Agreement by referring the disputes to a Co-ordinating Committee jointly established by the parties under the agreement.

The committee found in favour of the company, but the Federal Government refused to be bound by the decisions of the committee.
Claiming that the refusal of the Federal Government to comply with the decisions of the committee was frustrating its effort to recoup over N30 billion it had invested in the MMA2 development, Bi-Courtney filed a suit at the Federal High Court.

For reasons best known to him, the then Attorney General of the Federation and Minister for Justice, Chief Michael Aondoakaa did not ‘diligently’ defend the case. The trial court found in favour of the concessionaire (Bi-Courtney).

However, since he took over as the AGF, Mohammed Bello Adoke, SAN had been making efforts to redress the perceived injustice in the judgment of the high court.

He consequently briefed a firm of lawyers, Kenna and Associates who on July11th, 2011 filed a notice of appeal at the Court of Appeal seeking to set aside the judgment of the Federal High Court.

In an affidavit filed along with the appeal, several averments which cast aspersion o the way and manner Aondoakaa prosecuted the case were made.

The affidavit became necessary because the notice of appeal was filed outside the mandatory period of filing an appeal.
Paragraphs b and c state, “That the then occupant of the office of the Attorney General of the Federation (Aondoakaa), who was the Chief Law Officer for the federal Government did not file any counter affidavit to the Respondent’s Originating Summons.

“That the then occupant of the AGF did not also notify the other Federal Government ministry and agencies directly involved in the dispute of the existence of the suit to enable them to either join in as parties and properly defend the suit or in the very least present him with the facts to effectively defend the suit.”

The appeal filed by the Federal Government will come up Monday at the Court of Appeal in Abuja.

Tags: News, Nigeria, Featured, Bi-Courtney

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