THE REQUIREMENTS OF APPEALING AS A PARTY INTERESTED

The position of the law is that a person who was not a party to a suit at the trial court can appeal to the court of appeal as an interested party but to do that he must seek the leave of the court and such leave cannot be subsumed into a trinity prayer because the leave is a condition precedent and failure to obtain it renders the court incompetent to assume jurisdiction and the trial court is the most appropriate court from where the leave should be seek first. This position of law was reiterated by the Supreme Court in the case of F.A.A.N V. Bi Courtney Ltd. (2025) 7 NWLR (pt. 1989) 365. 

The brief narration of the fact of the case and what led to the above pronouncements by the Apex Court is that The Federal Government of Nigeria granted a concession to Bi Courtney Limited(1st respondent) for the redevelopment of the fire-razed Murtala Mohammed Airport Domestic Terminal 2 (MMA2) in Ikeja, Lagos, under a Build, Operate, and Transfer (BOT) arrangement. The concession agreement, signed on 24th April 2003, was between: The Federal Government (represented by the Minister of Aviation) as Grantor, While the 1st respondent and Stabilini Visinoni Ltd as Concessionaire. Under the agreement, the 1st respondents were to finance, design, build, and operate MMA2 for 36 years starting 7th May 2007. The concession was exclusive and the Federal Government assured in the concession that no other party would be granted rights conflicting with the concessionaire’s, no new domestic terminal would be built, nor any existing one materially improved in a way that would compete with MMA2, all scheduled domestic flights in and out of Lagos would operate from MMA2 and the 1st respondent would have the right of first refusal for any necessary expansion or new terminal. However, the Federal Government allowed domestic flights to operate from terminals other than MMA2. It also approved in principle the construction of another airport by the Lagos State Government and refused to deliver vacant possession of the General Aviation Terminal as agreed. The 1st respondent claimed these breaches denied it the opportunity to recover its ₦39 billion investment.

In line with the agreement’s dispute resolution procedure, the 1st respondent notified the 2nd respondent of five disputes on 20th June 2008. Therefore, a 7-member coordinating committee was set up on 10th September 2008. The committee held seven meetings and found in favour of the 1st respondent on all issues. The committee directed that all scheduled domestic flights be moved to MMA2. That the government shall account for and remit all revenues from domestic flights operated outside MMA2 since it began operation. The 1st respondent shall collect levies and surcharges from fuel marketers supplying airlines using MMA2.

The Federal Government however failed to comply with these directives. As a result, the 1st respondent filed suit on 23rd January 2009. The trial court, on 3rd March 2009, found in favour of the 1st respondent. The appellant, who was not a party to the suit, later applied to the Court of Appeal on 29th June 2010 seeking:

-Extension of time within which to seek leave to appeal as “party interested” against the judgment of the trial court.

-Leave to appeal as “party interested” against the judgment of the trial court.

-Extension of time within which to appeal as “party interested” against the judgment of the trial court.

The appellant explained the delay by deposing that It was unaware of the suit and judgment at the trial court and It awaited authorization from the Ministry of Aviation to appeal which was obtained on 23rd March 2010. The Court of Appeal dismissed the application, holding that the application was incompetent and that the appellant failed to show good and substantial reasons for not appealing within time after obtaining the authorization from the ministry of aviation.

Dissatisfied, the appellant appealed to the Supreme Court.

At the supreme Court, both parties canvassed their arguments and the Supreme Court in its judgement held that:

“Where a party seeks to appeal as an interested party against the judgment in a suit he was not originally a party to, his first prayer must be for the leave of court to appeal as a party interested pursuant to section 243(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is upon the grant of that prayer admitting the applicant to participate in the proceedings that he would then be required to comply with the prescriptions of the law in the same manner as any other party to wit: filing his appeal within the time for filing of appeals under section 24 of the Court of Appeal Act, 2004; or presenting the trinity prayers or other prayers in respect of his intended appeal. In other words if he is out of time to appeal, he requires the trinity prayers. Since he is in the category of persons who require leave ab initio, in order to participate in the proceedings, the application for leave to appeal as an interested party cannot be subsumed in the trinity prayers. It is a separate relief.”

The court went ahead to emphasize that the applicant does not need to seek an extension of time to request leave to appeal as an interested party, as no time limit exists for that. However, obtaining such leave is essential, it is a prerequisite for the court to have jurisdiction to hear the appeal. Without it, any application becomes incompetent. The success of other reliefs (the “trinity prayers”) depends entirely on first being granted leave to appeal as an interested party. This specific relief must be made separately and not merged with the trinity prayers. In this case, the appellant failed to do so and instead applied only for the trinity prayers without first seeking leave to appeal. As a result, the Court of Appeal rightly held the application incompetent because a condition precedent “leave of court” was not fulfilled.

The court further explain who can exercise the right to appeal the court stated that,

They are:

(a) a party seeking to exercise the right of appeal must either be a party to the proceedings or a person having an interest in the subject matter of the appeal; and

(b) the party seeking to exercise the right of appeal, either as party to the proceedings or as a person having an interest in the subject matter, must be someone aggrieved by the decision sought to be appealed against.

At the same instance, the Supreme Court affirmed the decision of the Court of Appeal when it held that by the provision of Order 7 rule 4 of the Court of Appeal Rules, whenever an application may be made either at the court below(trial court) or to the  Court of Appeal, it shall not be made at the first instance to the Court of Appeal except in special circumstances which make it impossible or impracticable to apply to the lower court. The Court held that: 

“The provision is a strict liability rule and rules of court are not made for fun. They must be obeyed." 

Therefore, in the circumstances of this case which showed no special circumstances that warrants the leave not to be sought at the trial court first, the application filed at the Court of Appeal is therefore against the prescription of Order 7 rule 4 of the Court of Appeal Rules, which meant it was incompetent and the Supreme Court held that it was rightly dismissed by the Court of Appeal.

By this, the principle established is strict and must be observed as emphasized by the Apex Court.

About the Author:

Abubakar Aliyu Sa'ad is the Director of Research and Litigation, Solace Chambers, Bayero University, Kano. He can be reached via: +2349071127064.