The controversy surrounding the indebtedness of Arik to the Federal Airports Authority of Nigeria has taken a new twist as Bi-Courtney Aviation Services Limited (BASL), operator of the Murtala Muhammed Airport Two (MMA2), Lagos, yesterday claimed that Arik Air’s alleged N12.5 billion indebtedness, which led to the disruption of its operations in Lagos and Abuja by aviation workers on Wednesday, 20th April 2016 was indeed part of Bi-Courtney’s legitimate revenue that the Federal Airports Authority of Nigeria (FAAN) continued to appropriate despite several legal pronouncements.
In a statement by the company's Chief Operations Officer, Ms Adebisi Awoniyi, she noted that:"Members of the public will recall that the National Union of Air Transport Employees (NAUTE), FAAN branch, had prevented Arik from carrying out its domestic operations at the General Aviation Terminal (GAT), Lagos and the Nnamdi AzikweInternational Airport, Abuja, during the impasse".
"We want the public, particularly relevant stakeholders, to notethat the country’s law recognises Bi-Courtney as the genuine owner of GAT, thus, making FAAN’s continuous operation of the terminal illegal and a clear violation of the laws of the Federal Republic of Nigeria. FAAN however, continues to defy the laws of the land. It has openly and recklessly denied our company 60 per cent of its revenue by its continuous illegal operation of the GAT as a competing terminal to MMA2 even after an Arbitration Panel, a Court of Law and an Appeal Court had ruled in our favour."
Awoniyi therefore affirmed that, all revenues, such as Passenger Processing Charge, space rental, fuel surcharge and others, which FAAN had been collecting and continues to collect from its unlawful operation of the GAT, including the N12.5 billion in contention between FAAN and Arik Air, belonged to Bi-Courtney.
"The implication of this is that both FAAN and Arik Air are indeed fighting over monies that lawfully belong to Bi-Courtney Aviation Services Limited.
"We also wish to categorically confirm that all the airlines operating at the GAT are actively involved in FAAN’s act of illegality, because they are all aware of the position of the law in respect of the ownership of the terminal. It was, therefore,shocking to hear the Managing Director of Arik Air, Mr. Chris Ndulue, in an interview, in THIS DAY of Friday, April 29, titled, “Ndulue: Charges on Airlines should be done Transparently”, accuse FAAN of disregarding specific orders of the court and perpetrating acts of illegality against his company.
"It was indeed surprising to hear Arik Air, which had hithertosupported FAAN in all the latter’s obvious injustice towards Bi-Courtney and outright disobedience to court orders, complaining and now turning round to accuse the same FAAN of arbitrariness and disdain for the rule of law. One wonders what went wrong with the romance of the two.
"We also find interesting the claim by Ndulue in the same interview that “Arik Air continues to have confidence in the court even if FAAN does not have confidence in the court. Arik Air remains committed to adhering to principles of the rule of law”. If Ndulue’s claim was true, Arik Air would have conformed to the court judgment that affirmed Bi-Courtney’s ownership of the GAT, especially after the appeal filed on its behalf by Ojemaie Holdings against the judgment failed. Rather, it continued to support and encourage FAAN’s acts of illegality.It can only mean Arik Air is very selective in its understanding of the principles of the rule of law and court orders.
"What Ndulue said in his interview can be classified only as mere rhetoric. It is our hope that this development will serve as a wake-up call to other airlines, service providers and businesses operating at the GAT to the risk they are exposing themselves to due to their continued recognition of FAAN as the operator of the terminal, despite the well-publicised position of the nation’s law on the matter.
It is public knowledge that the various court judgments on the issue, including the arbitration panel, which first adjudicated the dispute between Bi-Courtney and FAAN, on the terms of the concession agreement for the reconstruction and operation of MMA2, “unambiguously affirmed Bi-Courtney’s ownership of the GAT. There is a subsisting judgment of N132 billion in favour of Bi-Courtney, which FAAN has refused to honour due to its blatant disregard for the laws of Nigeria. This judgment was obtained in 2012. This amount four years on would have increased.
Particular judgments confirming the owner of GAT as Bi-Courtney include the 2009 ruling of Justice J. Chikere of the Abuja Federal High Court in Suit No. FHC/ABJ/CJ/50/2009. The same judgment was reaffirmed in a ruling on February 13, 2013 by Justice A.R. Mohammed of the same court in a suit filed by FAAN and the Ministry of Aviation, asking the court to declare that they were not bound by the ruling of Justice Chikere. Justice Mohammed, in his ruling, had stated categorically that by suing the Attorney-General of the Federation, Bi-Courtney’s suit was binding on all agencies of the Federal Government.
It should be of interest to note that Justice Mohammed also quoted aspects of Justice Chikere’s ruling, where it said: “The parties named in the relief 7 are agents/agencies of the Federal Government. They are agents/agencies of a named principal that is the Federal Government. Any order against the known principal binds the agents/agencies. The agents/agencies stationed and operating at all airports terminal in Lagos State could not have operated without the support or approval of the Federal Government. They are therefore restrained, prevented or prohibited from operating scheduled flights in and out of Lagos State from any airport terminal other than MMA2 or an airport terminal owned/operated by the plaintiff during the concession period as stipulated in the Agreement.”
Furthermore, worthy of a mention is the judgment by Justice G.K. Olotu of Federal High Court, Abuja Division, delivered on July 3, 2012, on the ownership of the GAT, in which the judge stated as follows: “In the case before the court, we have seen the gross, deliberate, calculated and heinous abuse of the rule of law, typified by the acts of the Federal Government of Nigeria, headed by the President, assisted by the Minister charged with responsibilities for aviation matters in disobeying the judgment of the court delivered on 3rd March, 2009, i.e. approximately three years and three months ago, to deliver the immediate possession of the GAT to the plaintiffs (Bi-Courtney) as ordered by the court.
“As if that is not enough, the Federal Government and its agencies are presently engaged in the ‘remodeling and, or, construction works to improve the terminal (GAT), contrary to and notwithstanding the agreement with the applicant and the judgment of the honourable court.”
"We also wish to remind all and emphasise that the GAT was declared an integral part of the MMA2 concession by the decision of the Federal High Court in 2009.
"But in a desperate move to prevent the handing over of the premises to Bi-Courtney Limited, four appeals were filed and lost by the following: Attorney- General of the Federation, OjemaieHoldings (landlord to Arik Air), NUATE and ATSSAN (Trade Unions under the Ministry of Aviation) and FAAN.
Awoniyi concluded:"There is, therefore, no doubt on the current position of the law in respect to the ownership of the GAT, nor the fact that Bi-Courtney is the rightful owner of the N12.5b that is the subject of dispute between Arik Air and FAAN."
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