From Godwin Tsa, Abuja
The Abuja division of the Federal High Court has fixed April 25 to deliver judgment in a suit seeking to quash the letter by the Chief Judge of the court, Justice John Tsoho, directing the transfer of the suit by the registered trustees of the Airline Operators of Nigeria (AON) against the Minister of Aviation and others pending before the Lagos division of the court to Abuja.
Justice James Omotosho fixed the date yesterday after taking arguments canvassed by counsel to both parties for and against the suit.
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).
While making his submissions, counsel to the plaintiffs, 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 is 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 do not permit the transfer of the substantive suit from Lagos judicial division to Abuja.
The plaintiffs also claim that the action of the Chief Judge, through his letter dated February 16, 2023, is an abuse of process and complete usurpation of, 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 is bereft of merit, an abuse of process and is not justiciable. After taking submissions by 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 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”. The plaintiffs also sought for “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.”
They also asked the court to award them N2 billion in damages and order a perpetual injunction restraining the federal government from transferring the shares and operations of Nigeria Air to Ethiopian Airlines.