Virgin Loses Bid to Stay at MMIA
By Davidson Iriekpen, 02.23.2008
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A Federal High Court in Lagos, yesterday vacated the interim order it earlier gave on January 31 2008, restraining the federal government or its agencies from effecting the relocation of Virgin Nigeria from the international wing of the Murtala Muhammed Airport, Lagos, to the newly-constructed domestic wing, MMA2.
The matter, which was at the last sitting (February 14, 2008) adjourned for ruling on March 24 2008, was however, brought forward yesterday.
The court, had following an ex-parte application by Virgin Nigeria, which had complained to it that the federal government breached the Memorandum of Mutual Understanding they both reached on September 28 2004, by ordering it to relocate its domestic operations from the international wing of the MMA to the domestic wing, restrained government from carrying through with its directive.
In his ruling yesterday, presiding judge, Justice Ibrahim Auta, struck out the case on the grounds that the court did not have the jurisdiction to entertain the matter and that there was an arbitration clause in the Memorandum of Mutual Undertaking (MMU) the airline signed with the federal government and thus referred the matter to arbitration.
According to Justice Auta, "the plaintiff’s (Virgin Nigeria) case is premature, and this court finds that it lacks jurisdiction to entertain the case. The parties should abide by the provision of clause A, which they mutually agreed to guide and govern their relationship. Therefore, the case is accordingly struck out and the ex-parte order made on January 31, 2008, is accordingly set aside."
In the course of arguing the case, the federal government through its counsel, Mr. Yusuf Ali (SAN), had pleaded with the court to vacate the interim order, arguing that Virgin Nigeria concealed material facts from the court, which is why the order should be vacated.
Ali argued that there was no privity of contract between the plaintiffs and the defendants in the Memorandum of Mutual Understanding, as the plaintiffs were not a party to the contract, adding that having not been party to the agreement, the order made by the court cannot be enjoyed by Virgin Nigeria.
Referring to the certificate of incorporation of Virgin Nigeria, dated December 21, 2004, Ali contended that the said Memorandum of Mutual Understanding was entered into on September 28, 2004, and Virgin cannot profit from a contract it was never a party to, which is what it had done by coming to court and obtaining an order.
But Virgin Nigeria on its part, argued that the court has the jurisdiction to hear the matter, notwithstanding the existence of arbitration. Its counsel, Mr. Demola Akerele (SAN) contended that the plaintiff had a right to file a matter in court, as the burden was on the defendants to prove the existence of arbitration.
Following the ruling yesterday, Bi-Courtney Aviation Services Limited, operators of the MMA2, said it welcomed the decision of the court to discharge the order, adding that it hoped that with the discharge of the order, all aviation stakeholders can now join hands and work together to enhance the travelling experience of customers.
In a statement signed by its spokesperson, Kadaria Ahmed-Adesina, the company said with the court ruling it would be looking forward to welcoming all airlines operating domestic schedules to the MMA2.
Virgin Nigeria on its part, said it has already lodged a motion for appeal at the Court of Appeal in Lagos, adding that with this, any action taken by the first defendant (the Ministry of Aviation) and second defendant (The Attorney General of the Federation) or any of their agencies, including FAAN and NCAA to evict their domestic operations from the MMIA, will amount to an unlawful action under Nigerian law.
The federal government had given January 31 2008, as deadline to airlines operating domestic schedules from the international terminal of the airport to relocate to the domestic wing.