The registered Trustees of Airlines Operators of Nigeria has asked a Federal High Court in Lagos to halt the partnership between the Nigeria Air and its foreign partner.
The operators, which are the plaintiffs (1st – 8th) in the matter, include The Registered Trustees of the Airline Operators of Nigeria, including Azman Air, Air Peace, Max Air, Topbrass Aviation and United Nigeria Airlines, flight want the court to dissolve any agreement between the Nigerian government and the Ethiopian Air Limited and its consortium.
The defendants (1st – 4th) are the Nigeria Air, Ethiopian Air Limited, Sen. Hadi Sirika, Minister of Aviation, and the Attorney General of the Federation (AGF), Abubakar Malami. The suit was filed in the Federal High Court of Nigeria in the Lagos Judicial Division.
The federal government, had through the Ministry of Aviation named Ethiopian Airlines Consortium as preferred bidder for Nigeria Air in September.
The Minister of Aviation, Hadi Sirika, announced this in Abuja.
Among other prayers, the indigenous airlines want the court to stop the national carrier deal and withdraw the Air Transport Licence already issued to Nigeria Air by the Federal Government/Nigerian Civil Aviation Authority.
They also want the firm which served as Transaction Adviser for the transaction, which was incorporated in March last year and allegedly linked to the aviation minister to be stripped of such power.
The local airlines further alleged that ATL issued to Nigerian Air did not pass through the normal security clearance.
According to them, the federal government’s partnership with Ethiopian Airlines on the project will send domestic airlines out of business by opening up the domestic air travel market to Ethiopian Airlines.
In an affidavit in support of the originating summon, by one Ewos Iroro, the Assistant Secretary of the 1st Plaintiff in this suit, said the plaintiffs are an association and indigenous airline operators in Nigeria. He averred that the 3rd and 4th defendants (Minister of Aviation and AGF) supervised the sale and transfer of the Nigeria Air (1st defendant’s shares to the 2nd defendant (Ethiopian Air Limited, a public entity wholly owned by the Ethiopian government and its consortium.
He alleged that the consortium also was involved in double bidding of the 49% and 46% arrangements based on the biding documents and draft agreement, without consideration for the provisions of the Request for Proposal (RFP) developed and published by the 2nd defendant.
He said the action of the 3rd and 4th defendants was skewed, that did not followed laid down statutes and regulations for setting up a national carrier for the country;
Iroro stated that the procedure followed, the federal government became the minority shareholder while foreign companies and interests represented by the 2nd defendant that owns the majority shareholdings of 49% & 46% originally meant for the Nigerian financial and institutional investors respectively.
He said the plaintiffs, “as private investors took steps to partake in the bidding process but were blocked in an intricate web of politics and personal interests, designed to reach a contrived outcome inimical to the overall interests of the Nigerian State and its citizens.”
He stated that the 2nd defendant that is not a private entity but fully owned by Ethiopian government parastatal and its consortium, majorly foreigners were discreetly allowed to be the sole bidder and winner of the purported bidding process.
“Prior to the bidding and even before a formal agreement is executed, in a high web of conspiracy, indicative of the designed contrived outcome, the 2nd defendant had already listed the 1st defendant, the FGN’s supposed National Carrier, as its subsidiary,” he alleged.
He sworn that the emergence of the 2nd defendant and its consortium is in violation of all known International and local laws of aviation and international investment.
He plaintiffs therefore asked the court based on facts above to determine the following formulated questions.
“1. Whether on proper construction of the Companies and Allied Matters Act 2020, SEC (Securities and Exchange Commission) Nigeria Consolidated Rules & Regulations 2013 (as amended in 2022), Nigerian Investment Promotion Commission Act, International Civil Aviation Organisation Convention, Civil Aviation Act, Public Procurement Act, Concession Regulatory Commission (Est.) Act, 2005, Federal Competition and Consumer Protection Act, Procurement Processes for Public Private Partnership in the Federal Government under the National Policy on Public Private Partnership (N4P) and Nigeria Civil Aviation Regulations, 2015 and other regulatory statutes on aviation, companies and investment laws in Nigeria; the action, conduct and or decisions in the sale of the shares and operations of the 1st defendant is not invalid, null & void.
“2. Whether on construction of International Civil Aviation Organisation Convention, among others, the entire administrative actions and decisions of the third and fourth defendants in the sale of the shares of the 1st defendant to the 2nd defendant and its consortium is not invalid, void and of no effect having regard to the process embarked upon and the extant local and international laws and regulations on aviation including the terms and condition stated in the request for proposal.
“3. Whether, on a construction of Section 78 (1) & (2) of the Companies and Allied Matters Act 2020, Rule 406(2) of SEC Nigeria Consolidated Rules & Regulations 2013 (as amended in 2022), section 20 of the Nigerian Investment Promotion Commission Act, Article 7 of the International Civil Aviation Organization Convention, section 33 of the Civil Aviation Act Cap C13 LFN 2004 (as amended in 2006); the 2nd Defendant and its consortium were competent and qualified to bid for shares in the 1st Defendant and commence business accordingly.
“4. Whether, on a construction of Sections 4 & 5, among others, of the Infrastructure Concession Regulatory Commission (Est.) Act, 2005; Sections 24 & 27, among others, of the Public Procurement Act; and Clauses 2, 3 and 4 of the Procurement Processes for Public Private Partnership in the Federal Government under the National Policy on Public Private Partnership, sections 76-81 of the Federal Competition and Consumer Protection Act; the selection of the 2nd Defendant and its consortium as the sole bidder in the bidding exercise for the Nigeria Air Project conducted by the 1st, 3rd& 4th Defendants is proper, lawful and valid?
“5. Whether the entire process for the sale and transfer of shares of the in the 1st Defendant to the 2nd defendant and its consortium by the 3rd and 4th Defendants is in line with the provisions of the Infrastructure Concession Regulatory Commission (Est.) Act, 2005, Federal Competition and Consumer Protection Act, International Civil Aviation Organisation Convention, the National Policy on Public Private Partnership, sections 76-81 of the Federal Competition and Consumer Protection Act and does not affect the entire process including the selection, approval or grant to the 2nd Defendant and its consortium by the 3rd and 4th Defendants is not invalid and thereby entitling the entire process to fresh bidding exercise?”
The domestic airlines demanded, in the court document, an order directing the immediate revocation and cancellation of the Air Transport License issued by the Nigerian Civil Aviation Authority to the 1st Defendant.
They also demanded an order of N2bn only as damages “for the injury suffered by the plaintiffs and still suffering as a result of the wrongful exclusion of the Plaintiffs, wrongful action; unlawful bidding and selection processes and their wrongful projection of the plaintiffs as not having properly, rightly and timely bid for the Nigeria Air project.”
The plaintiffs therefore prayed the court that upon the determination of the questions, it should make a: “Declaration that the action, conduct and or decisions in the sale of the shares and operations of the 1st Defendant is in violation of the Companies and Allied Matters Act (CAMA) 2020, SEC Nigeria Consolidated Rules & Regulations 2013 (as amended in 2022), Nigerian Investment Promotion Commission (NIPC) Act, International Civil Aviation Organization (ICAO) Convention, Civil Aviation Act, Public Procurement Act, Concession Regulatory Commission (Est.) Act, 2005, Federal Competition and Consumer Protection Act, Procurement Processes for Public Private Partnership in the Federal Government under the National Policy on Public Private Partnership (N4P) and Nigeria Civil Aviation Regulations, 2015 and other regulatory statutes on aviation, companies and investment laws in Nigeria.
“A declaration that the entire administrative actions and decisions of the 3rd and 4th Defendants in the sale of the shares of the 1st Defendant to the 2nd Defendant and its consortium is invalid, void and of no effect.
“A declaration that the 2nd Defendant was incompetent to bid for shares in the 1st Defendant and commence business accordingly.”
The plaintiffs also prayed the court to ordered the setting aside the entire bidding/selection process(es) for the “Nigeria Air” project as well as the approval, grant or selection of the 2nd defendant by the 1st, 3rd and 4th Defendants in the process.
“An order directing the immediate, fresh and transparent bidding process(es) involving the Plaintiffs being the indigenous Airline Operators in Nigeria rightly entitled to participate in the process.
“An order directing the immediate revocation and cancellation of the Air Transport License (ATL) issued by the Nigerian Civil Aviation Authority (NCAA) to the 1st Defendant.
“An order N2,000,000,000.00 (Two Billion Naira, only) as damages for the injury suffered by the Plaintiffs and still suffering as a result of the wrongful exclusion of the Plaintiffs, wrongful action; unlawful bidding and selection processes and their wrongful projection of the Plaintiffs as not having properly, rightly and timely bid for the Nigeria Air project.”
The plaintiffs prayed the court for perpetual injunction restraining the defendants, their agents, servants, officers, privies, and principals from perfecting, continuing and transferring the operations of Nigeria Air by the 3rd and 4th defendants to the 2nd defendant.
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