‘The General Aviation Terminal belongs to Bi-Courtney Limited’
This article by Yemi Olayinka, discusses the long-drawn-out differences between Bi-Courtney Limited (BCL), Ministry of Aviation and Federal Airports Authority of Nigeria (FAAN), on the Airport Terminal (MMA 2) built by BCL, and the extremely negative consequences which arise from the actions of public officers, who create huge financial burdens for the Federal Government, as a result of their lawlessness and failure to adhere to contractual obligations
How Public Officers create massive financial burden for the Federal Government, through lawlessness.
The time has come for the Federal Government to sanction officers who through ignorance, negligence or malice, cause the Federal Government a lot of financial losses. For example, the international community is discussing the judgement obtained against NNPC or the Ministry of Petroleum for over $8billion dollars, in arbitration in England.
Questions
The first question the Government must investigate is, who are the officers that were to implement the contract and failed to do so? The second is, what was the level of diligence applied during the dispute resolution process? Did the corporation or official responsible for handling the dispute display the level of knowledge and consciousness required, to defend the dispute at the Arbitration panel? Arbitral awards must be taken very seriously, because the Courts are very reluctant to set aside the decisions of an Arbitral Panel. Rightly so, because they are essentially dispute resolution processes set up by the disputing parties, and thus, binding on them.
It is in this context that, it is very important to highlight the lawlessness being perpetuated by the Ministry of Aviation and FAAN. When the Murtala Mohammed Domestic Airport got burnt, Government left the place in its burnt state for a long while, and the place became a public embarrassment.
Bi-Courtney responded to a public advert from the Ministry of Aviation, seeking interest to come and build the Terminal on a Public Private Partnership (PPP). The project was ultimately awarded to Bi-Courtney Limited, when the preferred bidder failed to deliver on the project. Bi-Courtney built a masterpiece on the site, which is still the most well thought out Terminal in Nigeria today. It is to the great credit of Bi-Courtney that, twelve years after the completion of the Terminal, FAAN has not managed to build a comparable Terminal in Nigeria.
For the past eleven years, FAAN has been struggling to complete the new Abuja and Lagos Terminals which have gulped more than $800million, and are still yet to be completed. Information reaching the stakeholders is that, the project is a failed project. The design was wrong, and it requires another $400million to complete the Terminals. It would be very unfortunate, if the Federal Government does not investigate the colossal loss of money on the construction of the Terminal. We cannot continue to lose money, when the private sector can do the project better and in a more efficient manner than FAAN, as shown by Bi- Courtney Limited.
Complete Lawlessness
As soon as MMA 2 was completed, Government began to violate the express terms of the Agreement, including its commitment to ensure that the Airport revenue from all domestic traffic operating in Lagos be paid to Bi-Courtney Limited. It was this Agreement and the revenue expected from the transaction, that Bi-Courtney pledged to the banks. FAAN took away 60% of the revenue of Bi-Courtney, unlawfully. How could this happen in a nation governed by laws? How could FAAN be a party to an Agreement, and from the onset, proceed to breach the terms of the Agreement, so fundamentally?
Bi-Courtney after appealing to the Federal Government and FAAN for almost two years, to honour the Agreement they had signed, appealed to the Attorney- General of the Federation to look into the matter, as Bi-Courtney was bleeding profusely financially.
The Attorney-General, in line with the Concession, set up a Committee of three members form the Government, and Bi-Courtney Limited also nominated three members. The Arbitral Panel found in favour of Bi-Courtney Limited and directed as follows: a. The Concession period, is 36 years; b. All revenue detailed in the Agreement, which includes revenue from all domestic flights and surcharge on fuel consumption, belongs to Bi- Courtney Limited;
c. That the General Aviation Terminal belongs to Bi-Courtney Limited, and must be immediately handed over to the Company. According to the Court: “The Defendant, the Federal Government, is to immediately deliver up possession of the General Aviation Terminal (GAT) at its Murtala Mohammed Airport, Lagos to the Plaintiff for the purpose of extending operations at MMA 2 as contemplated by the Agreement.”
The position of the Coordination Committee, was further confirmed by the Federal High Court on the 3rd day of March, 2019.
The Ministry of Aviation and FAAN, have tried severally to upturn the judgement of the Court. All attempts have failed. The Attorney-General’s cases were dismissed twice, in the following suits: a. CA/A/221/M/2012 on 13th of June, 2012; b. CA/A/361/M/2012 on 25th of September, 2018. FAAN’s appeal was dismissed in: a. CA/A/236/2010 on 8th July, 2010 Despite this very clear situation, FAAN continues to disregard the Laws and Constitution of the Federal Republic of Nigeria, which state very clearly that, all Nigerians must be governed by a system that is anchored on the Rule of Law.
Through the lawlessness of certain officials of the Ministry of Aviation and FAAN, a certain debt of N132billion, has been awarded against the Federal Government of Nigeria.
Consequences
A further sum of about N300billion, has further accrued since 2011. This
debt, will have to be paid by the Federal Government and FAAN. The officials of Government that created this massive debt, are likely to go unpunished. This is the bane of Nigeria. There is no penalty, for causing massive losses to the Federal Government of Nigeria.
In addition to financial loss, this sort of action, prevents investors who have a choice of countries to invest in, from coming to Nigeria. Capital is very sensitive. It prefers environments that are stable, and operate in a manner consistent with the Rule of Law. Little wonder that, despite the massive potential that Nigeria offers, very little investment comes into the Nigerian infrastructure.
The action of these officers of Government, is an embarrassment to all Nigerians. There are a lot of well-educated and exposed Nigerians whose businesses suffer, because of the image created by careless officers like the officers of FAAN, for example.
“IN ADDITION TO FINANCIAL LOSS, THIS SORT OF ACTION, PREVENTS INVESTORS WHO HAVE A CHOICE OF COUNTRIES TO INVEST IN, FROM COMING TO NIGERIA. CAPITAL IS VERY SENSITIVE. IT PREFERS ENVIRONMENTS THAT ARE STABLE, AND OPERATE IN A MANNER CONSISTENT WITH THE RULE OF LAW”