Court dismisses suit by airline operators against CJ, Ethiopian Airlines, others

  • •Awards N1.5m cost in favour of Chief Judge

 

 

The Federal High Court, Abuja has dismissed the suit filed 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 dismissed the suit for being frivolous and unreasonable as it disclosed no cause of action.

The court also awarded a cost of N1.5 million against the plaintiffs in favour of the Chief Judge for humiliating and harassing him in the course of performing his duties as a public officer.

Justice Omotosho agreed with counsel to the defendants that the suit by the plaintiffs disclosed no reasonable cause of action.

Plaintiffs in the suit are Azman Air Services Limited, Air Peace Limited, Max Air Limited, United Nigeria Airline Company Limited, and Topbrass Aviation Limited, while 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) are defendants.

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-sign the same to another Judge of the Court and that such discretionary powers are not justiciable.

He said, “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.

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“The plaintiffs can not bring an action against the discretional powers of the Chief Judge to transfer a case and re-signed same. The Chief Judge acted in his judicial and administrative capacity and cannot be sued for 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 the court.

Azman’s B737 aircraft

“Besides, the Chief Judge has not assigned the case file to another judge of the Federal High Court”, he held and dismissed the suit for being frivolous and an abuse of the court process.

“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 their submissions, through their counsel, Nureini Jimoh (SAN), argued that the letter by the Chief Judge 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 an invalid, improper and 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.

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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.

Max Air’s B737 airplane

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 plaintiff’s 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 the 2nd, 4th, and 5th defendants and Basil Atup for 3rd defendants, vehemently challenged the competence of the plaintiff’s 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 not justiciable.

United Nigeria Airline

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 Nigeria Air Limited to Ethiopian Airlines by the defendants listed as Nigeria Air, Ethiopian Airlines, Hadi Sirika, minister of aviation and Attorney-General of the Federation (AGF).

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Meanwhile, in the originating summons of the suit, the plaintiffs formulated five questions for the court to determine, one of which reads:

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 entire process to fresh bidding exercise.”

Ethiopian Airlines aircraft

The plaintiffs, therefore, prayed the court to declare that “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 invalid, void and of no effect.”

Wole Shadare