A Federal High Court in Lagos has ordered a stoppage of discussions between the Federal Government of Nigerian and Ethiopian Airlines over the operation of Nigeria Air.
The order, made by Justice A. Lewis-Allagoa, was a sequel to a suit brought before the court by the Registered Trustees of the Airlines Operators of Nigeria (AON) and Azman Air Services Limited, Air Peace Limited, Max Air Limited, United Nigeria Airlines Company Limited and Topbrass Aviation Limited seeking an invalidation of the agreement entered into between Nigeria’s government and Ethiopian Airlines for the operation of Nigeria Air.
Listed as defendants in the suit are Nigeria Air Limited, Ethiopian Airlines, Sen. Hadi Sirika, who is the Minister of Aviation, and the Attorney General of the Federation.
The airline operators asked the court for an order restraining the defendants from giving life to the ‘national carrier establishment and agreement between the Federal Government of Nigeria, represented by Sirika, the Attorney General and Ethiopian Airlines, listed as strategic equity partner “or giving effect to or suspending the sale and transfer of the shares of” Nigeria Air by Ethiopian Airlines pending determination of the substantive suit.
In his decision, Justice Lewis-Allagoa allowed an order of interim injunction “restraining the defendant’s either by themselves, agents, privies, principals or any other person whosoever from executing the proposed National carrier Establishment and Agreement between the Federal Government of Nigeria and the strategic equity partner or giving effect to and or suspending the sale and transfer of the shares and operations of Nigeria Air by Ethiopian Airlines pending the determination of the motion on notice”.
The AON had approached the court seeking judicial interpretation of the law on “whether on the proper construction of the Companies and Allied Matters Act (CAMA) 2020, SEC Nigeria Consolidated Rules and 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; the action, conduct and or decisions in the sale of the shares and operations of the 1st Defendant is not invalid, null and void.
“Whether on the construction of the International Civil Aviation Organization (ICAO) Convention, amongst others, the entire administrative actions and decisions of the third and fourth Defendants in the sale of the shares of the first Defendant to the second 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.
“Whether on the construction of section 78 (1) and (2) of the Companies and Allied Matters Act (CAMA) 2020, Rule 406(2) of SEC Nigeria Consolidated Rules and Regulations 2013 (as amended in 2022), section 20 of the Nigerian Investment Promotion Commission (NIPC) Act, Article 7 of the International Civil Aviation Organization (ICAO) Convention, section 33 of the Civil Aviation Act Cap C13 LFN 2004 (as amended in 2006); the second Defendant and its consortium were competent and qualified to bid for shares in the first Defendant and commence business accordingly.
“Whether on construction of Sections 4 and 5, among others, of the Infrastructure Concession Regulatory Commission (Est.) Act, 2005; Sections 24 and 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 (N4P), sections 76-81 of the Federal Competition and Consumer Protection Act; the selection of the second defendant and its consortium as the sole bidder in the bidding exercise for the Nigeria Air Project conducted by the first, third and fourth Defendants is proper, lawful and valid?
“Whether the entire process for the sale and transfer of shares of the in the 1st Defendant to the second defendant and its consortium by the third and fourth 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 Organization (ICAO) Convention, the National Policy on Public Private Partnership (N4P), 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 second Defendant and its consortium by the third and fourth Defendants is not invalid and thereby entitling the entire process to fresh bidding exercise?”
Upon determination of the above questions, the plaintiff are asking the court for further orders to effect: “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 third and fourth defendants in the sale of the shares of the first defendant to the second defendant and its consortium is invalid, void, and of no effect.
“A declaration that the second defendant was incompetent to bid for shares in the first defendant and commence business accordingly.
“An order setting aside the entire bidding/selection process(es) for the “Nigeria Air” project as well as the approval, grant, or selection of the second defendant by the first, third and fourth 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 first defendant, and
“Ana order of 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 AON is also asking the court for an order of “perpetual injunction restraining the defendants, their agents, servants, officers, privies, and principals from perfecting, continuing and transferring the operations of Nigeria Air by the third and fourth defendants to the second defendant.”
