• Tinubu flies to France in ‘new presidential plane’
• Nigeria exposed to ridicule in int’l fora, says Prof. Ayoade
• Soremekun: Not sticking to agreement erodes investor confidence 
• Episode embarrassing to nation, says Omoregie 
 
 
Nigeria has a solid legal basis to reclaim its presidential jets, which were recently seized by a French court.  This position was emphasised yesterday by Nigeria’s former Minister of Justice and Attorney-General of the Federation, Michael Aondoakaa, who explained: “Presidential planes are not used for commercial functions; they are used basically for state purposes and should enjoy absolute sovereign immunity. I can’t see where a presidential plane anywhere in the world, including China, can be used for commercial transactions. 
   
“Nigeria still has a strong case to make to retrieve those presidential planes because they enjoy absolute sovereign immunity. The Chinese people ought to release our planes. According to the doctrine of sovereign immunity, they have no right to presidential planes because they are not for commercial transactions,” Aondoakaa said.
   
The former justice minister’s comments came as President Tinubu departed Abuja yesterday for Paris using the new Airbus A330, which replaced the 19-year-old Boeing B737-700(BBJ) bought under the administration of President Olusegun Obasanjo.
   
According to a statement by Bayo Onanuga, Special Adviser to the President on Information and Strategy, the new plane, bought far below the market price, saves Nigeria huge maintenance and fuel costs, running into millions of dollars yearly.
   
He said the recommendation to replace the B737-700(BBJ) followed an investigative hearing by Nigeria’s parliament that questioned the plane’s safety record and cost efficiency, especially after it malfunctioned during a trip to Saudi Arabia. 
   
He added that the Nigerian Senate’s security and intelligence committee recommended replacing the aging aircraft in the presidential fleet to reduce downtime and operational expenses.
   
Aondoakaa, who spoke on Arise TV Morning Show yesterday, emphasised the doctrine of sovereign immunity, which he believed is critical to Nigeria’s case.
   
The seizure was initiated by Zhongshan Fucheng Industrial Investment Co. Ltd, a Chinese firm involved in a protracted legal dispute with the Ogun State government over managing an export processing zone.
   
The jets in question include a Dassault Falcon 7X, currently in Paris, and a Boeing 737 and Airbus A330, both undergoing maintenance in Switzerland. The total value of the seized aircraft exceeds $100 million. One of the jets, an A330, was later released to Nigeria on Friday.
   
The former minister said sovereign immunity consists of two types: absolute and restricted. He explained that absolute sovereign immunity applies to state-owned properties used for governmental functions, protected from legal actions like seizure or attachment, unlike properties used for commercial purposes.
   
He also questioned the legal processes that led to the seizure. He noted that in England, the seat of arbitration, the recognition of foreign judgments excludes sovereign immunity in cases involving commercial transactions. He argued that since the presidential jets are not commercial assets, they should not have been subject to such legal actions.
  
 Aondoakaa raised concerns about the response of Nigerian legal representatives during the enforcement proceedings, suggesting that there may have been lapses in protecting Nigeria’s interests, particularly concerning the planes, which he insisted are protected by sovereign immunity.
   
The Senior Advocate of Nigeria also critiqued the international arbitration process, noting potential procedural errors. He pointed out that the arbitration should have first exhausted diplomatic channels, as stipulated in the bilateral treaty between Nigeria and China.  He suggested that the arbitration could have been avoided or delayed if these channels had been appropriately utilised.

MEANWHILE, the order to seize the presidential jets has demonstrated the consequences of unbridled contractual impunity in the country.  A lecturer at the Faculty of Law, University of Lagos, Prof. Dayo Ayoade, said Nigeria’s problem is a lack of accountability and punishment for serious crimes against the nation.
   
He explained that there is no sovereign immunity for commercial activities, noting that Nigeria established the principle in international law in a case with the Central Bank at the British Court of Appeal. In that case, it was accepted that there is a difference between a government’s political and commercial acts, so when a government is working in the commercial sector, it is held accountable like any other commercial entity.
    
“Why would a governor unilaterally cancel a contract entered into by his predecessor? Government is a continuum. You have an attorney general, a ministry of justice, and professors of law that could advise before that decision was taken,” he said. 
   
He noted that the action exposed the country to ridicule and embarrassment in international fora  Ayoade, also an honorary Energy Law Professor at the University of Dundee, Britain, urged the Federal Government to take measures to prevent such a situation from happening again.
   
In recent times, different business entities have learned the act of pouncing on the assets of the country at will without any modicum of respect for its sovereignty owing to contractual disputes.
   
The current controversy arose from an arbitration proceeding that commenced in 2018 as a fallout of a contractual dispute between the Chinese company and the Ogun State Government over the operation and management of the Ogun Guangdong Free Trade Zone. Less than a week earlier, the United States Court of Appeal for the District of Columbia rejected Nigeria’s sovereign immunity defence concerning the same award. 
   
The award also resulted in the seizure of two properties belonging to Nigeria in Liverpool, England, in June 2024. In its award published on March 26, 2021, the arbitrators, after considering all the jurisdictional points raised and argued by Nigeria and the merits of the claim, awarded compensation of $55,675,000, $75,000 for moral damages plus interest of $9,400,000, and costs of £2,864,445.
  
 Interestingly, the matter is between the claimant and the Ogun State government. However, according to the Federal Government and others with knowledge of international law, the assets sought for seizure are covered by sovereign immunity. 
   
“While further actions are being put in place to resolve the entire dispute through available legal means, the firm position of the Federal Government remains that the aircraft in question are sovereign assets used solely for sovereign purposes and are therefore immune from attachment as Zhongshan had sought to do,” said Kamarudeen Ogundele, the Special Adviser to the President on Communication and Publicity, Office of the Attorney General of the Federation and Minister of Justice.
   
He said that the Offices of the National Security Adviser and the Attorney-General of the Federation have already initiated both legal and diplomatic steps to ensure the discharge of inappropriate orders against the aircraft.
   
Professor of Political Science at the Lagos State University, Kayode Soremekun, said Nigeria’s interests have been severely jeopardised, as not adhering to agreements can erode investor confidence.
   
He suggested that the case affects Nigeria’s image, as public officials tend to walk away from international agreements, giving way to unscrupulous businessmen who may want to set traps for the nation.
  
According to him, they set the trap, hoping that Nigeria would walk away so they would invoke losses that would jeopardise the nation’s economic interest. He added that diplomatic negotiations are ongoing, and the two former governors involved in the issues have given their perspectives on what happened.  He urged the federal and Ogun state governments to pursue the matter through dialogue, debate, and discussion.
   
Soremekun also advised public officers to exercise caution while interacting with other parties because clauses can be evoked if an entity decides to simply walk away from agreements. 
  
 He said repercussions should be considered when policies are put in place. He also warned that it has become a recurring scenario for foreign entities to try to feast on the country’s assets.
   
Reacting to the seizure on X, Adewole Adebayo, the 2023 presidential candidate for the Social Democratic Party (SDP), lamented the development. He said: “How can any court seize this? The seizure is unlawful under international law because an official aircraft of a sovereign is not a commercial asset to be seized. It has diplomatic immunity as a tool of diplomacy for the government of the Federal Republic of Nigeria. It is the law.”
   
Professor of Constitutional Law and Governance Edoba Omoregie (SAN) described the whole episode as curious.  He said: “From the facts available, the Federal Government was never a party to the controversial agreement which led to the litigation and subsequent efforts by the Chinese creditor to enforce the arbitral award. I wonder what privity of contract liability Nigeria owes to be compelled to forfeit its assets to offset the judgment debt in issue. 
  
 “The facts available are that the agreement was concluded between the Government of Ogun State and the Chinese judgment creditor. Therefore, following strict contract law principles, the dispute should be between the two parties, not the Government of the Federation.”
   
Omoregie noted that the government of Ogun State is a corporate entity distinct from the government of the federation. He stressed that the entire episode was embarrassing to the country, even as he expressed optimism that Nigeria would finally triumph. 
   
For his part, Femi Otubanjo, Research Professor of International Relations and Strategic Studies at the Nigerian Institute of International Affairs (NIIA), believes the arbitral award in no way affects Nigeria’s image except for those with mischievous intentions who intended to see it that way.
   
He noted that the Chinese company appears to have blindsided Nigeria by going behind the scenes to pursue such actions, adding that countries and companies all over the world have such disputes, so there is nothing for Nigeria to be ashamed of.
   
“It has nothing to do with Nigeria and its image. It’s an ongoing case, and from what has been said, the Chinese did not present all the details of the matter to the court. 
   
“For example, they did not tell the court that those planes are sovereign entities that belong to the Nigerian government and, therefore, are not supposed to be touched. We will wait for Nigeria to respond appropriately by bringing this to the knowledge of the court, so they know the nature of assets they intend to seize. I expect they should be able to reverse that.”
   
On whether it is an abuse of court process to seek multiple avenues for enforcement, the Partner and Head, Dispute Resolution, Templars, Adewale Atake (SAN), and Senior Associate, Dispute Resolution, Templars, Orji Agwu Uka, said due to the instrumentality of the New York Convention, upon the publication of an arbitral award, such an award becomes potentially enforceable in any of the 170 contracting States to the Convention. 
    
They said this means that an award creditor, such as Zhongshan, is at liberty to approach the courts of any of the Convention’s contracting states (where Nigeria has assets) to apply for the recognition and enforcement of the award.  
  
“In practice, this often involves the use of the mechanism of asset tracing to ascertain where an award debtor has assets. Ostensibly, this is what revealed that Nigeria had jets in France. As the English Court of Appeal stated, parties are entitled to take as many enforcement actions as they see fit to recover their debt.”