Breaking: Nigeria Air: Leaked Memo Reveals Why Ethiopia, Investors Fail To Sign Deal

Indications have emerged that the shareholders in the controversial national carrier, Nigeria Air, have yet to sign any agreement to formalise their stake in the project.

A memo presented by the Ministry of Aviation to the ninth House of Representatives indicated that no public-private partnership had been signed by the stakeholders.

In addition, the memo presented by the Infrastructure Concession Regulatory Commission to the ninth House during its investigation of the project also revealed that shareholders had yet to sign any agreement as regards their stakes because of unresolved issues, including their structure and respective functions in the Nigeria Air.

The national carrier was launched at the twilight of the Buhari administration, an exercise the Green Chamber has described as a fraud. The then Minister of Aviation, Hadi Sirika, had in his response denied any wrongdoing, saying there was nothing fraudulent or secretive about the project.

Sirika also accused the former chairman of the House Committee on Aviation, Nnolim Nnaji, of demanding from him five per cent stake in the airline, a claim Nnaji has also denied.

There were reports that an aircraft belonging to Ethiopian Airlines, which holds the largest stake of 49 per cent in the project, was chartered, repainted to bear Nigeria Air’s colours and was flown to Nigeria for a display, after which the aircraft returned to Ethiopia and was repainted to its original colour.

The Senate and the House had summoned stakeholders in the aviation industry to separate meetings over the controversy.

Meanwhile, the Ministry of Aviation in a memo to the House, dated June 2, 2023, with Reference Number MCA0008/S.33/T4/22, and signed by the Director of Planning, Research and Statistics, M. R Shehu, said 100 per cent of the stakes had been taken.

The memo partly read, “I am directed to refer to your letter Nos: NASS/9HR/CT.017/121 dated 31st May, 2023, and NASS/9HR/CT.017/122 dated 1st June, 2023 on the above subject and to respond to your request as follows:

“Full disclosure of ownership structure of Nigeria Air: The proposed ownership structure of Nigeria Air Limited is as follows: Ethiopian Airlines Group, 49 per cent, $122,500,000; The FGN, five per cent, $12,500,000; MRS Oil and Gas Company Limited, 31 per cent, $77,500,000; Skyway Aviation Handling Company Plc, 15 per cent, $37,500,000; Total, 100 per cent, $250,000,000.

“All PPP agreements reached and signed with Ethiopia Airline with regard to the Project: There was no PPP agreement signed.

“PPP agreement reached and signed with all other parties: None.”

The memo however contradicted the position of the former Personal Assistant to President Muhammadu Buhari on Digital Communications and New Media, Bashir Ahmad, who tweeted on June 6, 2023 that partnerships and agreements on the national carrier had been signed.

He wrote on his verified Twitter handle, @BashirAhmaad (sic), “NigeriaAir is NOT a fraud, the Aviation Ministry has made a significant progress towards its realisation. Branding unveiled, partnerships and agreements signed, most of the operational certificates issued and operational offices opened. NigeriaAir will fly to make Nigeria proud.”

On the Full Business Case for the Nigeria Air, the memo indicated that FBC is usually prepared by the Transaction Adviser and reviewed by the ICRC for issuance of Compliance Certificate.

Meanwhile, the ICRC, in its memo to the House dated June 6, 2023, with Reference Number ICRC/DG/2/S.15/XII/45, and signed by the Director-General, Michael Ohiani, gave a contrary account of the ownership structure.

The commission, which is leading the negotiations for the deal, stated that Ethiopian Airline has 49 per cent; MRS Oil and Gas Limited, 15 per cent; SAHCO, 15 per cent; Federal Government, five per cent while 16 per cent had yet to be allotted.

The ICRC memo also indicated that the proposal was turned down five times by the Federal Executive Council under the Buhari administration before it was eventually approved the sixth time.

The ICRC gave details of the deal, “The national carrier project was initiated by the Ministry of Transportation in 2016 as part of the Aviation Sector Roadmap, which was approved by Mr President (Muhammadu Buhari). The project was structured to be implemented as a public-private partnership initiative, for which the Infrastructure Concession Regulatory Commission’s regulatory guidance was sought.

“The ICRC provided the required guidance for the implementation of the project in line with the requirements of the ICRC Establishment Act 2005 and the National Policy on PPPS. Following the guidance provided, the following milestones were achieved:

“Constitution of project steering committee and a project delivery team to guide the implementation of the project. Appointment of a Transaction Adviser – this was done in compliance with the Bureau of Public Procurement Act. Lufthansa Technik was first procured but later changed to Airline Management Group/Traniero after obtaining FEC approval. Development and submission of an Outline Business Case by the Airline Management Group in 2018.

“The structure involved the Federal Government of Nigeria holding five per cent equity, while the remaining 95 per cent is held by private partners (the foreign partner who is required to have undertaken at Ieast 10 years scheduled international operations) will hold a maximum of 49 per cent, while the Nigerian partners hold a minimum of 46 per cent.”

The ICRC said its Certificate of Compliance to the OBC confirmed the viability and creditworthiness of the project.

Speaking on the reason why FEC rejected the proposal five times, the ICRC noted, “It is important to note that the OBC was presented to FEC six times before it was approved. This was due to the insistence by FEC that the Federal Government will not contribute any funds to the take-off of the airline as was initially structured. FEC requested that the project should be fully privately financed since it’s viable and bankable,” Ohiani noted.

Documents not signed

The ICRC said after 10 weeks of advertisement, only the Ethiopian Airlines consortium submitted a bid and that the project proceeded to the negotiation stage, based on Section 5 (a) of the ICRC establishment Act 2005.

The section states that if after advertisement in accordance with Section 4 of this Act only one contractor or project proponent applied or submits a bid or proposal, or only one contractor or project proponent meets the prequalification requirements, the ministry, agency, corporation, body may undertake direct negotiation without competitive bidding for any contract to be entered into, pursuant to Section 1 of the Act.

On the reason why the documents were yet to be signed, the memo noted, “Several preparatory meetings were held as a prelude to negotiations between the Ministry of Aviation and other government stakeholders before engaging with the Ethiopian Airlines Consortium.

“The commission thereafter requested the implementation of the following before negotiations: the consortium to be a Special Purpose Vehicle; consortium to sign a shareholders’ agreement/updated consortium agreement; the 16 per cent unallotted shares to be fully allotted in compliance with CAMA 2022 and transparency principles; and project to adhere fully to the requirements of the request for proposal document.”

The memo indicated that negotiation was thereafter convened to discuss the issues highlighted for the consortium to implement but had to be suspended when it was observed that members of the consortium were working at cross-purposes.

This, it said, was based on the following observations/complaints by members; that the consortium had not agreed on their structure and function; some members were not privy to the documents under consideration; the consortium had not met on their own and had informed the meeting that the TA to the ministry had been the one calling for all their meetings and guiding their interactions.

It continued, “The consortium was thereafter requested to meet and resolve all their issues and present a common position for the purpose of negotiations and executing the PPP agreement with the government. They were unable to resolve their issues and sign the shareholder’s agreement as requested.

“This led to a letter of complaint from SAHCO expressing its concerns and not accepting the shareholders’ agreement as presented. Ethiopian Airlines responded with justification for the issues raised. Efforts to mediate through physical meetings and correspondences towards ensuring the signing of the shareholders’ agreement are ongoing.

“A meeting of the government representatives was thereafter convened at the ICRC to harmonise the position of the government before engaging in any discussion with the private proponent.”

It said the meeting agreed that every member of the consortium would be required to sign the PPP agreement individually as well as the shareholders’ agreement.

It added that the meeting further agreed that the 16 per cent unallotted shares must be fully allotted; that the project must have duration to comply with the requirements of the ICRC Establishment Act and that all clauses that allocate financing and regulatory risk to the government must be reviewed and adjusted appropriately.

The ICRC said it wrote a regulatory position to all members of the consortium on April 17, 2023, with a review and highlighted issues that needed to be addressed and corrected before the shareholders’ agreement could be signed.

According to the commission, some of the issues included that the Ministry of Finance Incorporated to hold the five per cent Federal Government’s equity and sign the shareholders’ agreement on behalf of the government; full allotment of the 16 per cent unallotted shares in the consortium recognition and valuation of the Bilateral Air Services Agreements as part of Federal Government’s contribution to the project; provide clarity on the status of local airlines currently operating regional and international routes, in view of request for total rights over all the existing BASAs; and “the deletion of the clause that waives sovereign immunity by Nigeria.”

The ICRC added that the ministry convened a negotiation meeting on April 18 and 19, 2023, at the ministry “but could not proceed as representative of the Federal Ministry of Justice cited a court order restraining any action on the project.”

The memo indicated that the next step was for all shareholders to sign the shareholders’ agreement and that negotiation should resume and be concluded once the court order was lifted.

On the next step, the ICRC memo added, “Full Business Case to be prepared and submitted to the ICRC for review and issuance of certificate; presentation to the Federal Executive Council for approval; vetting of draft PPP agreement by Ministry of Justice; and contract execution.”