From Godwin Tsa, Abuja
The Abuja division of the Federal High Court has dismissed the suit by the registered trustees of the Airline Operators of Nigeria (AON) challenging the letter by the Chief Judge of the court, Justice John Tsoho, directing the transfer of the matter pending before the Lagos division of the court to Abuja.
Justice James Omotosho, in his judgment on Tuesday, dismissed the suit on the ground that it was frivolous, unreasonable as it disclosed no cause of action.
Meanwhile, the court has awarded a cost of N1.5 million against the plaintiffs in favour of the Chief Judge of the Federal High Court, Justice Tsoho, for humiliating and harassing him in the course of performing his duties as a public officer.
The judge agreed with counsel to the defendants that the suit by the plaintiffs disclosed no reasonable cause of action.
Other plaintiffs in the suit are Azman Air Services Limited, Air Peace Limited, Max Air Limited, United Nigeria Airline Company Limited, and Topbrass Aviation Limited.
The plaintiffs listed the Chief Judge of the Federal High Court, Justice John Tsoho, Nigeria Air Limited, Ethiopian Airlines, Sen. Hadi Sirika (Minister of Aviation) and the Attorney General of Federation (AGF).
Justice Omotosho held that the chief judge is empowered by the provisions of the Federal High Court Act to request for a case file at any stage of the proceedings and to re-assign the same to another judge of the court, and that such discretionary powers are not justiciable.
“Section 19 (3) of the Federal High Court Act and other enabling provisions have empowered the Chief Judge of the Federal High Court to act so. He can exercise his administrative powers to transfer and assign cases.
“The plaintiffs cannot bring an action against the discretionary powers of the chief judge to transfer a case and re-assign the same. The chief judge acted in his judicial and administrative capacity and cannot be sued by his action. The action of the plaintiffs has not disclosed any reasonable cause of action.
“Insisting that a matter be heard by a particular judge is not a legal ground for bringing an action to court. Besides, the chief judge has not assigned the case file to another judge of the Federal High Court.”
Consequently, the court held that the suit was frivolous and an abuse of court process and, therefore, dismissed.
“This suit is frivolous, unreasonable and brought to humiliate and harass a public officer. I, hereby, award a cost of N1.5 million against the plaintiffs in favour of the chief judge.”
The plaintiffs had, while making his submissions, through their counsel, Nureini Jimoh (SAN), argued that the letter by the Chief Judge, Justice John Tsoho, for the transfer of the substantive suit marked FHC/L/CS/2159/2022, filed by his client and pending before Justice A. L. Allogoa of the Lagos division of the court was invalid, improper and an unlawful interference with the judicial process.
Jimoh further argued that by the provisions of 22 (1) of the Federal High Court Act, 2019, and order 2 rule 4 along with order 1 rule 5 of the Act, the power to transfer the suit resides solely with the presiding judge, Justice A.L. Allogoa.
It is also the contention of the plaintiffs that section 19 (3) of the Federal High Court Act, 2019 and order 2 rules 1 (2) (c) and 3 of the Federal High Court (Civil Procedure) rules does not permit the transfer of the substantive suit from Lagos judicial division to Abuja.
That the action of the chief judge, through his letter dated February 16, 2023, is an abuse of process and complete usurpation of power, as well as interference with the judicial process and an infraction of the plaintiffs’ fundamental right to fair hearing.
The plaintiffs are, therefore, seeking an order remitting the substantive suit marked FHC/L/CS/2159/2022, to Justice A. L. Allogoa of the Lagos judicial division of the Federal High Court.
However, counsel to the defendants, represented by J.U.K Igwe (SAN), for the Chief Judge of the Federal High Court, Dr. Alex Izinyon (SAN), for second, fourth and fifth defendants and Basil Atup for third defendants, vehemently challenged the competence of the plaintiffs’ case and urged the court to dismiss same.
In their separate counter affidavits and preliminary objections, the defendants argued that the suit was bereft of merit, an abuse of process and was not justiciable.
After taking submissions by the counsel, Justice Omotosho fixed April 25 for judgment.
In the substantive suit pending before Justice Allagoa of the Lagos division of the Federal High Court, the plaintiffs are challenging the entire process for the sale and transfer of shares of the Nigeria Air Limited to Ethiopian Airlines by the defendants listed as Nigeria Air, Ethiopian Airlines, Minister of Aviation, Hadi Sirika, and the Attorney-General of the Federation (AGF).
Meanwhile, in the originating summons of the suit, the plaintiffs formulated five questions to the court to determine, one of which reads: “Whether the entire process for the sale and transfer of shares of the first 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 Organisation (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?”
The plaintiffs, therefore, prayed the court to declare 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.”