By Judith Ufford

A COUPLE of months ago, during an inspection tour of the Murtala Mohammed International Airport, MMIA, Ikeja, queries were made about a vast parcel of undeveloped land, why it was left undeveloped when there was so much to do with it. An official who served as guide to the inspection team responded that the land in question was under litigation.

“FAAN is in court with Chief Harry Akande over the land. The land was awarded to Chief Harry Akande, a businessman and former BOT chairman of the ANPP. He got the concession under General Sani Abacha’s regime in February 17, 1998.  His company, AIC Ltd, won a 50-year concession from FAAN to build a hotel on the land (11.654 hectares of land) at the Murtala Muhammed International Airport,” the official explained at length.

He informed further: “But, after the change of government in 1999, the approval for the permit was held back by the Obasanjo administration after a study of the process that  led to the concessioning which showed that some things were wrong in the process.

In May 2000, FAAN wrote AIC/Hilton to vacate the land stating irregularities in the concession process and concerns about the proposed height of the hotel. But Chief Akande’s company maintained that the issue of the hotel’s height and some other related matters had earlier been resolved with FAAN’s previous management in a letter to AIC/Hilton conveying approval for the site plan, the structure and architectural designs”.

Following the stoppage of construction work, AIC’s General Manager, Administration and Business Development, Mr. Niyi Akande, said the company instituted a case against FAAN at the Federal High Court, Lagos which was decided in 2002 and referred to an arbitration.

Arbitration panel

He said the arbitration panel headed by the late Justice Kayode Eso awarded $47 million as damages against FAAN, but regretted that the agency had not obeyed the ruling. He explained that the panel awarded the cost in respect of loss of income and left the issue of escalation of the cost to the court to handle.

MMA Lagos.

“We went back to court to challenge the arbitration. Prior to the ruling, the two parties agreed to an arbitrator. You present your case and whatever the arbitrator rules is supposed to be final and binding on both parties. But in this case, the award was given in June 1, 2010 and FAAN has been contesting it in the High Court since then, using delay tactics.

“They filed a case in court which they did not pursue diligently; they came with different  excuses for adjournment and while they were doing this, they wanted to illegally take over the land. We still have a 50-year lease and it is still subsisting on this land.

There is a court injunction which is still subsisting. We did not go through the back door. They leased the land to us; we signed an agreement and we did not just come here to take the land. FAAN should obey court decisions,” he said before last Friday’s judgement.

He said FAAN had encroached upon the property and started converting a portion of it into a parking lot. Besides, he alleged that there is a conspiracy against the company. “Somebody wants AIC Limited out of this land but the law of the country says that if you are in possession of a land even if by illegal means, you cannot be ejected unless by the court, but in this case we are even here by legal means.

FAAN gave AIC Limited the legal possession for 50 years and we have not even reached a quarter of those years. If they are in a hurry, they should wait; when the lease… is over, the land goes back to them,” said Akande. But FAAN justified the withdrawal of the concession, saying it did so for security reasons. The agency’s Director of Legal Services, Mr. Mark Jacob, said  perceived threat to aviation security had informed the stoppage of work at the proposed site of the hotel.

He maintained that “there is no country in the world where a hotel is built near a sensitive site of any airport.” He further said that although an error was made by granting the concession ab initio, “it is not late too correct it for national interest, safety of passengers and other airport users. One man’s interest cannot override that of the nation”. On payment of damages that the arbitration panel awarded to AIC, Jacob said FAAN considered the cost outrageous and challenged it in court.

“FAAN appealed the ruling. We are talking of $47 million for a company that did not put any structure at the site of the proposed hotel. It is a huge sum; we are not talking of N47 million. The matter is pending in court,” he said before judgement was delivered. On why proximity to the apron or any other sensitive part of the airport was not taken into consideration before the concession was signed, Jacob maintained that it was an oversight.

So when judgement was given last week by Justice Ibrahim Buba of the Federal High Court, Lagos, in favour of FAAN, AIC Ltd screamed blue murder, threatening to appeal the judgement. The presiding Judge who consolidated three suits: Suit No. FHC/906/2010 FAAN vs AIC Ltd., Suit No. FHC/L/CS/1058/2010 AIC Ltd vs FAAN, and Suit No. FHC/L/CS/1239/2010 AIC Ltd vs FAAN, in his judgement,  ruled  that the Arbitral Tribunal, which had awarded AIC Ltd the sum of $48, 124,000 mis-conducted itself and went out of its jurisdiction in rendering  the final award between the parties on June 1, 2010. He, therefore, declared that the final award was null and void and thereby set it aside.

But observers are quick to note that this is one of the series of breaches of agreements by FAAN. They argue that Bi-Courtney Aviation Services, BASL, is still in court with FAAN over breach of a duly signed concession. But Sheri Kyari, an engineer and aviation stakeholder sees no breach.

According to him: “Some of us had for many years condemned  the siting of that project at that location for security fears knowing the peculiarity of our nation. However, the powers that be gave in. The reversal is very much in order and should be greeted by all Nigerians with great applause. It’s the right thing the court did. FAAN should take possession without delay and save the nation another tragedy.”

But this was not the view of Mr. Clement Udegbe, a legal practitioner. For him, the announcement by FAAN’s spokesman, Mr. Yakubu Dati  to the effect that the place will now be opened up for hotels, resorts, etc, is questionable. “What difference is there in what AIC was meant to do in the concession?” he queried. “If FAAN will use that portion for the same general kind of use, why not with AIC?” he reasoned.

On the issue of fairness to AIC Ltd, Kyari stated thus: “While Akande might not have been treated fairly, I guess he knew the country he is in  and the many objections that followed  the allocation”.

Procurring the concession

But Udegbe differed slightly, arguing that AIC should be entitled to some compensation to cover the costs of procuring  the concession, bringing in all kinds of specialists as required with such huge projects and cost of litigation. “The Federal Government should set up a committee to look into their grievances and sort AIC out. Or expand  the concession to reflect the current and new intention of government regarding  that parcel of land,” he said.

The issue of public interest was also canvassed by Lagos-based lawyer, Mr. Pat Anyadubalu. According to him: “Though I’ve not read  the judgement on the said case, but suffice to say that a governor or president acting through the relevant minister can revoke land based on overiding public interest. Security obviously is a matter of public interest.

“There is, however, a caveat which is that government cannot revoke  land based on public interest and later resell it to a private person for private use. The case of Nwocha vs Nwobodo is a good example,” Mr. Anyadubalu explained. But Kyari cautioned on the subject. He observed thus: “FAAN may not use the place for hotel for security reasons which borders on public interest.”

But in a press statement released last week Friday by FAAN’s General Manager, Corporate Communications, Mr. Dati, after the judgement, the parcel of land in question, he said  has become free for massive infrastructural development at the MMI under the aerotropolis project. This, he disclosed, include an ultramodern hotel complex, a multi-storey car  park and other related projects, designed to expand facilities at the airport.