By Chinelo Obogo [email protected] 07064781119
Assets belonging to Arik Air Nigeria Limited reportedly valued at about $3 billion at the time the Assets Managament Corporation of Nigeria (AMCON) took over its operations, are now at the centre of a feud between its founder, Sir Johnson Arumemi Ikhide, and the bad bank.On February 9, 2017, AMCON took over Arik Air after it obtained an exparte order in suit No FHC/L/CS/175/17 on February 8, 2017 based on allegations that the airline was indebted to the tune of N141 billion. Following the court order, the Central Bank of Nigeria (CBN) in a memo referenced BSD/GDA/CON/AMC46/008, directed that bankers of Arik Air should suspend the repayment on the airlines existing credit facilities and channel the revenues to AMCON with effect from February 14, 2017.
But six years down the line, AMCON has been accused by Ikhide of decimating Arik Air’s assets, a claim which the receiver manager, Kamilu Omokhide, vehemently denied.
The issues
In suit (no FHC/L/CS/1175/2021), between Ikhide and Mary Arumemi Ikhide (the applicants) and Omokhide, AMCON, NG Eagle, Nigeria Civil Aviation Authority (NCAA) and Super Bravo (the defendants), Omokhide and AMCON were accused of transferring or attempting to transfer Arik Air assets to NG Eagle and Super Bravo who are defendants in the suit.
Ikhide is seeking a relief in court to declare that the transfer of Arik Air assets to NG Eagle and/or Super Bravo Limited was done in bad faith and in violation of Section 553 of the Companies and Allied Matters Act 2020. He argued that by transferring or attempting to transfer Arik Air assets, Omokhide did not act in the best interest of the airline as a whole and thereby failed in his duty to act in accordance with section 553 of the Companies and Allied Matters Act 2020.
He also wants an order compelling Omokhide and AMCON to refrain from interfering with the airline’s assets and to render accounts and deliver returns to the plaintiffs covering the entire period of the receivership. Also, an order of perpetual injunction restraining the defendants from future transferring or attempting to transfer the assets of Arik Air.
Ikhide said Omokhide is liable for any losses suffered by Arik Air as a result of the transfer of its assets and that the restructured facilities granted the airline had not become due and payable as at the time of the takeover of the operator by AMCON and the appointment of a receiver manager. He also argued that the power of AMCON to appoint a receiver manager pursuant to the restructured loan had not yet arisen on February 9, 2017 when the appointment was made, therefore, he said the appointment is improper and wrongful.
The shareholders of Arik Air are also perturbed about claims that assets that were taken over by AMCON have been depleted and they released a statement which read in part: “We wish to state that before the receivership by AMCON, Arik Air was valued at the sum of $3.7billion by the Deloitte of London. This valuation is a product of months of forensic review of all assets and visits to all worldwide stations including the Nigerian base by the valuers in 2014.
“While it would be recalled that AMCON through an exparte order in suit No FHC/L/CS/175/17 obtained on February 8, 2017 based on allegations of indebtedness of N141 billion, the sum, which is less than five percent valuation of the airline. As part of Arik Air’s continuous engagement with AMCON over the years, the management of the airline led the team of Delloitte valuers to present that report to the Minister of Finance, the Central Bank and the management of AMCON in 2014.
“It should be noted that in 2021, Arik Air shareholders, through the airline’s vice chairman, Senator Aniette Okon, made a public demand for AMCON to file the statement of affairs of the company in order for the shareholders to ascertain the state of the alleged indebtedness but AMCON bluntly refused and resorted to name calling
“Now, it is interesting that after over 80 days that the Federal High Court, in suit number FHC/L/CS/1175/2021 ruled on March 31, 2023, that the receiver manager and AMCON, should within 14 days of the judgment, file the audited account accounts of Arik Air since the receivership (a period of six years) with the Corporate Affairs Commission (CAC), the receiver manager and AMCON are yet to obey the court order to file that account.”
Other allegations were that the receiver manager sold a $41 million CRJ 1000 which Arik Air acquired via a lease deal with JEM Leasing Limited for $1.6 million to Alberta Aviation Capital, in Canada. It is also alleged that a company, Merchant Express was assigned the duty to tear down the aircraft and ship it but the action was aborted by the arrival of the anti-graft agency.
It has also claimed that 10 new generation aircraft which include Dash 8 Q400, CRJ 900 and Boeing 737-800 all of which were part of the airline’s assets have been stripped and vandalised with the management unable to account for them.
EFCC detains receiver manager
Last week, the EFCC detained Omokhide, over alleged misappropriation and diversion of about N120 billion alongside one Captain Samuel Caulcrick over the alleged illegal sale and tearing down the CRJ 1000 aircraft.
Omokhide who was later released was initially detained following a petition dated April 27, written by Femi Falana (SAN), a solicitor to Arik Nigeria Limited and addressed to the EFCC chairman. The petition read: “We are solicitors to Arik Nigeria Limited (hereinafter referred to as “our client”), on whose behalf and specific instructions we write you. Our client operates an airline in the aviation industry by offering air transportation services for passengers and cargo in Nigeria and has been in business since 2006.
“In compliance with an ex parte order of the Federal High Court, Lagos Judicial Division the Asset Management Corporation of Nigeria appointed a receiver manager to manage our client’s assets due to its financial obligation to some banks.
“Pursuant to the said ex parte order, the said receiver manager has been overseeing the affairs of our client’s assets pursuant from 2017 to date. In the course of running the airline business the receiver has engaged in financial mismanagement, diversion of monies, sales of assets and misappropriation of funds belonging to Arik airline.”
Omokide denies allegations of misappropriation
However, a statement issued on behalf of Arik Air under the leadership of Omokide by the airline’s consultant, Simon Tumba, debunked the allegations of the misappropriation of N120 billion and claimed that Ikhide owes AMCON about N240 billion as at May 31, 2023 because he guaranteed and therefore is by law an obligor in respect of this indebtedness and is personally liable for them.
Omokhide also defended himself saying JEM Leasing as the registered owners and lessor of the aircraft had decided to sell the CRJ 1000 but the company issued a disclaimer denying the sale and called for criminal investigation into the action. “The Receiver Manager has been transparent in his dealings in Arik. The petition, as has been presented in the media, suggests underhand sales of assets, including a number of CRJ aircraft. These aircraft were never owned by Arik. They were simply leased as the planes were owned by JEM Leasing Limited and JEM Air Limited (both foreign companies) and financed by Export Development Canada.
“These two foreign companies and EDC were the principal actors in the sale of the said aircraft. The Receiver Manager has no influence in respect of the exercise of mortgage rights by a mortgage. This has been clearly affirmed by EDC who have unequivocally confirmed, including through diplomatic channels, that it was it and the two foreign companies that sold these assets. The accusations against the Receiver Manager are therefore, cynical and unfounded.
“Furthermore, the petition raises concerns about the teardown of a Boeing 737-700 aircraft registered as 5N-MJI – which had been abandoned and cannibalised in Malta ever since 2013 by Arik under the then leadership of Sir Johnson, and years before the receivership commenced. The pre-teardown valuation of the aircraft by McLarens (an aircraft valuation company) valued the aircraft at USD1.5 million. This was however seized by Lufthansa Technik over Arik’s indebtedness incurred pre-receivership.
“Despite the contrived petitions and unwarranted allegations against the Receiver Manager, he remains resolute and undeterred in ensuring the successful execution of the receivership over Arik. He firmly asserts his unwavering determination to steadfastly defend the delicately constructed integrity he has nurtured, firmly refusing to permit any baseless allegations to besmirch it. He assured that he and all staff of Arik Air Limited (in receiver) will accord EFCC maximum cooperation,” he said.