By Jimoh babatunde

The action of the aviation workers under the aegis of National Union of Air Transport Employees (NUATE) and the Air Transport Services Senior Staff Association of Nigeria (ATSSSAN) last week at the Murtala Muhammed Airport Lagos which disrupted activities at Maevis Nigeria Limited calls to question the future of Public-Private Partnership (PPP) in the Aviation industry.

In the face of growing competition from other airports, particularly in Northern and Southern Africa, the Federal Airports Authority of Nigeria (FAAN) considered structural changes in some of the country’s airport facilities to handle newer and bigger aircraft being deployed by international and domestic carriers.

In doing so, FAAN resolved to partner with stakeholders in the industry, particularly the private sector, towards turning around the fortunes of the nation’s airports.

Sometime in 2009, the Chairman, Board of Directors of FAAN, Chief Ebitimi Banigo said they would pursue the proper concessioning of some of the airports and the automation of their facilities to improve on their revenue generation, in accordance with government’s Public-Private Partnership initiative and vision of making Nigeria one of the top 20 industrialised nations by year 2020.

From left: Director-General, Nigerian Civil Aviation Authority (NCAA), Dr. Harold Demuren receiving Managing Director, Air Namibia, Miriam Namases and General Manager, Commercial Services, Xavier Masule during the Airline's courtesy visit to NCAA at Aviiation House, Murtala Muhammed Airport, Ikeja, Lagos.

In the same vein, the Managing Director of FAAN, Mr. Aisuebeogun had once told visiting House chairman on Aviation, Hon. Bethel Amadi and members of the House of Representatives Committee on the state of the airports, that his management was exploring all avenues, including aeronautical and non-aeronautical, towards improving the Authority’s revenue generation.

The FAAN boss lamented that the major setback was the non-payment of debts owed by airlines and some other government agencies. He said the Authority had already gotten the consent of the Federal Government to work out measures aimed at recovering over N4.5 billion owed the Authority by the airlines.

This is where Maevis came into the picture as one of the concessionaires. Maevis, with the help of the technology they put in place at the airport, was able to raise the revenue profile of FAAN as what Maevis generated at the Murtala Muhammed Airport was more than what FAAN was generating from the 21 air ports across the country.

Apart from increasing the revenue of FAAN, travel process became simplified as travellers can now print their documents, tickets and check in online, this is no longer the case as some top officials of the agency bent on frustrating the Private-Public Partnership at the airport have deliberately misinformed the Minister of Aviation.

As all this is playing out, people are beginning to say that some top officials of the agency bent on frustrating the Private-Public Partnership at the airport have deliberately misinformed the unions.

Last week, despite the order of the Federal High Court sitting in Lagos restraining FAAN from terminating the concession contract between it and Maevis Nigeria Limited, aviation workers under the aegis of National Union of Air Transport Employees (NUATE) and the Air Transport Services Senior Staff Association of Nigeria ( ATSSSAN) sealed up the office of Maevis at the airport.

The leader of the workers, Benjamin Okewu, said “the fight is no other fight than that Maevis contract has been terminated and that they should leave the premises of the Federal Airports Authority of Nigeria (FAAN).

But, Mr. Wale Soneye, Head, General Services while speaking with journalist, said Maevis had earlier approached the court to intercede in the notice of termination of the contract agreement earlier served on the company and which was supposed to take effect last month before it was shelved because of the inauguration of President Jonathan.

FAAN management had earlier written to all the airlines that the services of Maevis will be terminated last week and they gave FAAN’s account numbers into which all the service charges will be paid.

He said they approached the court to protect the sanctity of their agreement as they had earlier approached the court twice in 2010 and May 2011 where it was said that the agreement they had was binding.

Soneye said in the suit No. FHC/L/CS/1155/2010 which came up on 19th May, 2011 at the Federal High Court, Ikoyi before Justice Binta F.M. Nyako, Professor Yemi Osinbajo (SAN) the lead counsel for Maevis, stated that it was important for Government and its agencies to abide by the rule of law and uphold the sanctity of the courts. He stated that FAAN, its management and employees cannot and should not disobey court orders.

He told the court that the unilateral action of FAAN via the Notice of Termination of the Agreement dated 24th March, 2011, which forms the basis of the suit between both parties, was an action that was tantamount to dissipating the res, contrary to the court’s preservative order of 24th September, 2010.

Osinbajo further noted that FAAN’s conduct ought to be deprecated by the court and the perpetrators of these contemptuous acts ought to be made to answer to the court for their actions.

He thereafter gave a brief background of the reasons that have brought both parties back to court.

These, he said, largely stemmed from the unilateral actions being taken by FAAN (issuance of a letter of notice of termination of agreement to Maevis and its meetings with clients where it threatened to take over the operations of Maevis) in spite of the existing court orders.

He reiterated his argument on the issue of dispute between Maevis and FAAN on the fact that there was a valid, binding and subsisting agreement between both parties (Maevis and FAAN) and the fact that the court had earlier ordered that both parties (Maevis and FAAN) preserve the res that is, maintain status quo, in her ruling of 24th of September 2010.

Prof. Yemi Osinbajo further stated that FAAN’s conduct in purportedly terminating the agreement was in defiance of the court orders.

In defending his client, Mr. Kola Awodein (SAN) the lead counsel to FAAN in his argument, identified that FAAN had disputed the jurisdiction of the court to entertain the application for contempt proceedings and appointment of arbitrators.

Mr. Awodein stated that according to the applicable rules of priority, issues of jurisdiction precede all other businesses of the court.

Justice Nyako however reminded the counsel that the issue of arbitration as directed by the Court was agreed by counsels for both parties in earlier proceedings.

In the light of the appeal presented by FAAN, Justice Nyako stated that the Federal High Court owed a duty to the Court of Appeal to preserve the res. The Court reiterated that in view of the Court’s order to preserve the res and the order that parties go to arbitration, FAAN cannot terminate the Agreement dated 31st October 2007, dissipate the res or take any actions in furtherance of any purported Notice of Termination.

Repeatedly, Justice Nyako reminded and admonished the defence counsel that FAAN cannot terminate the Agreement as that would amount to dissipating the res.

Having heard both parties, Justice B.F.M Nyako commented before her ruling and she was very emphatic on the fact that preserving the res was as much important to the entire agreement and the arbitration process.

In her ruling yesterday, Justice Nyako ordered that FAAN has no right to terminate Maevis’ contract; while recognizing the fact that though FAAN filed an appeal, challenging her earlier ruling, she repeated that the order to preserve the res (maintain status quo) must subsist during and through out the period of appeal or arbitration, until set aside; and that her initial order to preserve the res was applicable to the entire contract and her directive on arbitration.

The Court consequently made an order restating that its earlier preservative order of 24th September, 2010 as well as its Ruling dated December 17, 2010 are still subsisting and that the res, which is the relief sought by the Plaintiff in the Writ of Summons as it related to the Agreement, be preserved pending the determination of the appeal filed by FAAN, or in the alternative, if resort to arbitration was considered by FAAN. It ordered that parties maintain the status quo.

After her ruling, the judge further asked Mr. Awodein (SAN) the lead counsel to FAAN if he was clear on the ruling she has just given. Given the Court’s order, Prof. Yemi Osinbajo (SAN) said the contempt case would not be pursued for now except FAAN goes ahead to carry out its threat of trying to terminate Maevis’ agreement.

Commenting on the non remittance of money to FAAN’s account, Mr. Ernest Edgar, Head of Treasury, Maevis declared that the company never withheld funds meant for the agency and that its platform was accessible to both parties.

He said despite the uncomfortable environment it had been subjected to due to the accusation and counter-accusation of non-remittance of revenue to FAAN, that it remitted over N1b to the coffers of FAAN in May, 2011 alone while it equally generated and collected over N200m from the Nnamdi Azikiwe Airport, Abuja last month.

Edgar said “We don’t collect cash, so the issue of holding on to FAAN money does not arise. The system designed was presented to FAAN management and every stakeholder was carried along in the project design. This is the way the system is currently operated.”

Edgar added that the system is designed in such a way that when data are collected for the purpose of billing to the airlines, “they are sent out electronically and when they pay, they do so to a processing platform which FAAN is aware.

He explained that the banks maintained the processing platform and the splitting of the revenues to the various party, adding “this is how we have been operating since we signed the agreement with FAAN.”

Edgar said that FAAN workers should be well informed on how the platform operates as every bill generated and payment made that they notify FAAN, despite the fact that the agency has access to the transaction online. “Receipts are issued by FAAN to the airlines and anybody who pays through the platform.”

Mr. Wale Soneye added that the agreement entered into with FAAN by the company gave Maevis the power to automate all the revenue points of the agency, “the question is how many revenue points has FAAN given to Maevis.?”

While urging the management of the agency to lead its workers in the right direction not to alter the current agreement as the agreement they have is for 10 years.

A stakeholder in the industry said the workers are leaving what they should be doing to interfere in issue that is beyond their purview as FAAN is an agency have people who are not doing things properly.

One of the staff of FAAN who pleaded not to be mentioned said FAAN problem started when they paid over N9b to a company who contract was abruptly terminated last year.

He said the workers should be asking the management questions as to what they have done with the money generated so far by Maevis and if they are claiming they did not sign the agreement who signed it and that they should go to Maevis to get facts.

He said “The revenue generated has not only blocked the illegal revenue being earned by officials of FAAN, it has exposed their incompetence and high level corruption that has led to the call for the review of the concessionaire’s terms as well as the demand for it to be stopped from operating in other airports so that the merry can continue to go round.”

The worker said if Maevis is pushed out, the industry will lose as well as the country’s economy as Maevis has been able to turn around the face of the airport with the facilities they have provided.

He said for the purpose of PPP in the sector that the workers should sheath their sword and allow peace to reign in the sensitive aviation industry.