Court Issues Temporary Restraining Order Against Parties in FG -Deal with Ethiopian National Carrier

The proposed or draft “NATIONAL CARRIER ESTABLISHMENT AND AGREEMENT BETWEEN THE FEDERAL GOVERNMENT OF NIGERIA AND THE STRATEGIC EQUITY PARTNER, Ethiopian Airlines” has been blocked from being executed by Nigeria Air Limited, Ethiopian Airlines, the Minister of Aviation, Hadi Sirika, and the Attorney General of the Federation, Abubakar Malami (all of whom are listed as defendants).

In a decision on an exparte application made by the Registered Trustees Of The Airline Operators Of Nigeria, Azman Air Services Ltd, Air Peace Nigeria Ltd, Max Air Ltd, United Nigeria Airlines Company Ltd, and TopBrass Aviation Ltd, all of whom are listed as plaintiffs in a lawsuit they filed against the defendants, Justice Ambrose Lewis-Allagoa granted the order.

The order, which was granted on Tuesday, barred the defendants, who were represented by the Minister of Aviation, the AGF, and the strategic equity partner, who was represented by Ethiopian Airlines, from carrying out and/or suspending the sale and transfer of the joint operations of Nigeria Airlines and Ethiopian Airlines while the motion on notice was being considered.

In addition, the court ordered all parties to maintain the status quo and hold off on taking any other actions in the lawsuit until the motion on notice had been decided.

An expedited hearing of the lawsuit filed by the plaintiffs against the defendants was approved by Justice Lewis-Allagoa.

The plaintiffs are requesting, among other things, in the move on notice a DECLARATION that Nigeria’s aviation, business, and investment laws, as well as the Companies and Allied Matters Act (CAMA) 2020, have been broken in the sale of Nigeria Air Ltd. shares and activities.

Additionally, they are asking for a ruling that Ethiopian Airlines lacks the authority to compete for shares of Nigeria Air Ltd. and to operate as such.

They requested that the court nullify the entire selection and bidding process for the “Nigeria Air” project and issue an order mandating an immediate, new, and transparent selection process(es) in which the Plaintiffs—indigenous Nigerian airline operators who are legally qualified to participate in the process—will participate.

Additionally, they are asking for two billion naira to be given to them as compensation for the harm they claim to have experienced as a result of their unjust exclusion and what they claimed to be illegal selection and bidding procedures for the Nigeria Air project.

The plaintiffs asked the defendants to enter their appearance within 30 days in the originating summons of the case, which concerns the construction and interpretation of the infrastructure Concession Regulatory Commission Establishment Act of 2005, the National Policy on Public Procurement Act, the Federal Competition and Consumer Protection Act, and the Federal Republic of Nigeria’s sole selection of Ethiopian Airlines.

1. WHETHER on the proper construction 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; 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 the construction of the International Civil Aviation Organization (ICAO) Convention, amongst others, 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 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 (CAMA) 2020, Rule 406(2) of SEC Nigeria Consolidated Rules & 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 2nd Defendant and its consortium were competent and qualified to bid for shares in the 1st Defendant and commence business accordingly.
4. WHETHER, on the 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 (N4P), 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 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 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 2nd Defendant and its consortium by the 3rd and 4th Defendants is not invalid and thereby entitling the whole process to fresh bidding exercise?

Upon the determination of the questions, the Plaintiffs want the court to grant these claims against the Defendants:

i. A DECLARATION that the action, conduct and or decisions in the sale of the shares and operations of the 1st Defendant violates 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.

ii. A DECLARATION that the 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.
iii. A DECLARATION that the 2nd Defendant was incompetent to bid for shares in the 1st Defendant and commence business accordingly.

iv. AN ORDER setting aside the entire bidding/selection process(es) for the “Nigeria Air” project and the approval, grant or selection of the 2nd defendant by the 1st, 3rd and 4th Defendants in the process.

v. 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.

vi. 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.

vii. AN 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.

viii. 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.