Barristers & Solicitors
Court stops Nigeria Air

* Aviation Minister: we are not aware

The Federal High Court in Lagos has granted an interim injunction restraining the Federal Government and Ethiopian Airlines from proceeding with the establishment of a proposed national carrier called Nigeria Air Limited

Justice Ambrose Lewis-Allagoa made the order on November 11 following a November 10 motion ex parte in suit FHC/L/CS/2159/2022 filed by The Registered Trustees of the Airline Operators of Nigeria and five others in the aviation industry.

The judge also ordered all parties to the suit to maintain the status quo.

The four other plaintiffs are: Azman Air Services Limited, Air Peace Limited, Max Air Limited, United Nigeria Airlines Company Limited and Topbrass Aviation Limited are the first to sixth plaintiffs.

The first to fourth defendants are Nigeria Air Limited, Ethiopian Airlines, Sen. Hadi Sirika (Minister of Aviation, Federal Ministry of Aviation) and the Attorney-General of the Federation.

The judge granted the application as prayed after reading an affidavit in support of a motion sworn to by the Assistant Secretary of the Registered Trustees of the Airline Operators of Nigeria, Mr. Ewos Iroro and after hearing the submission of plaintiffs’ counsel Nureni Jimoh SAN.

Justice Lewis-Allagoa held: “An order of Interim Injunction is granted restraining the defendants either by themselves, agents, privies, Principals or any other persons whosoever from executing the proposed or draft NATIONAL CARRIER ESTABLISHMENT AND AGREEMENT BETWEEN THE Federal Government of Nigeria (represented by the 3rd and 4th Defendants) and strategic equity partner (the 2nd Defendant) or giving effect to and or suspending the sale and transfer of the shares & operations of the 1st Defendant by the 2nd Defendant pending the determination of the Motion on Notice.

“An Order of Maintenance of Status Quo by all parties in this suit from taking any further step(s) in relation to the subject matter of this suit pending the determination of the Motion on Notice is granted.

“An order of accelerated hearing of this suit is granted.”

The plaintiffs in their originating summons filed through Jimoh, are asking the court to cancel the Air Transport License (ATL) issued by the Nigerian Civil Aviation Authority (NCAA) to the newly formed Nigeria Air.

They are also praying the court to set aside the entire bidding/selection process(es) for the “Nigeria Air” project as well as the approval, grant or selection of Ethiopian Airlines by Nigeria Air Limited, Minister of Aviation and the Attorney-General of the Federation in the process.

They also claimed, among others, that the firm which served as Transaction Adviser for the transaction, was incorporated in March last year and alleged that the company was linked to the aviation minister.

They are seeking eight reliefs including a declaration that the action, conduct and or decisions in the sale of the shares and operations of the 1st Defendant violates several laws including 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, and Consumer Protection Act and other regulatory statutes on aviation, companies and investment laws.

“A declaration that the entire administrative actions and decisions of the Aviation Minister and the AGF in the sale of the shares of the Nigeria Air to Ethiopian Airlines and its consortium is invalid, void and of no effect.

“A declaration that Ethiopian Airlines was incompetent to bid for shares in Nigeria Air 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 Ethiopian Airlines 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 of N2billion 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.

“A perpetual injunction restraining the defendants from perfecting, continuing and transferring the operations of Nigeria Air by the Aviation Minister and AGF to Ethiopian Airlines.”

They stated the grounds upon which they filed their application in an affidavit in support of the originating summons sworn to by Iroro.

Iroro alleged that the aviation minister and AGF “failed, neglected and refused to follow the laid down statutes and regulations for setting up a National Carrier for the country;

“The Plaintiffs, amongst others, as private investors took steps to partake in the bidding process but were blocked in an intricate web of politics & personal interests, designed to reach a contrived outcome inimical to the overall interests of the Nigerian State and its citizens.

“The 2nd Defendant who is not a private entity but fully owned Ethiopian Government parastatal and its consortium who are majorly foreigners were discreetly allowed to be the sole bidder and winner of the purported bidding process.

“The 3rd & 4th Defendants approved the bid of the 2nd Defendant and its consortium as the sole bidder and sole winner in contravention of all known laws.”

But Sirika, who spoke at the Protocol Lounge of the Lagos Airport, said there is no going back on the delivery of the National Carrier – Nigeria Air, adding that attempts by some interest groups, including indigenous carriers to shoot down the project through a lawsuit would not see the light of day.

He said the Ministry of Aviation had not been served any notice by any court on the matter, adding that no court would allow itself to be used to frustrate such a national project.

He said there was nothing hidden about the processes leading to the setting of the company to float the National Carrier, as all information and documents connected to the project are in the public domain for anybody seeking clarification.

Sirika said: “I have been very transparent in the processes put in place to deliver the national carrier. If anyone wants to invest in a company, no one can stop them from investing. You can own a company 100 per cent. If anyone wants to invest, why not? We want foreign direct investment.

“We have worked with all stakeholders to deliver the national carrier. We have been very participatory and inclusive.

“Stakeholders claiming they were not carried along are being unfair. Nobody should claim they were not carried along. Nobody asked for any document on the national carrier that was not provided to.

“Now that local operators have gone to court, I do not see any rational court that will stop people from setting up an airline. No court will stop people from coming to invest in the National Carrier .”