9th October 2023
Arik Air Limited in Receivership (Arik) has debunked the allegations of misapplication of import duties and illicit sale of aircraft by the Nigerian Custom Service.
SaharaReporters reported on October 3, that the Nigeria Customs Service said it commenced an investigation into the diversion of import duties to the tune of $40 million by the management of Arik Air in Receivership.
It had been reported that there were indications that Arik in Receivership abused the duty waivers conceded to airlines by the Federal Government via Nigeria Customs Services which was limited to the importation of aircraft and spares by domestic airline operators.
A source had told SaharaReporters that in abusing the waiver policy, the management of Arik Air in receivership illegally sold some aircraft and aircraft parts with spurious documentation to back the sale, which was later found to be fake documents.
Reacting to the report, Arik Air in Receivership denied any wrong doing, adding that "all duty waivers granted to Arik before the receivership period, under the leadership of Sir Johnson Arumemi-Ikhide, were not properly documented and handed over to the receivership team as required by law."
It noted that it was Sir Johnson who pledged various Arik Aircraft and Engines to various local and international lenders, possibly in violation of the terms of the waivers.
"Arik's financial struggles with local and foreign creditors have been well-documented, including enforcement actions against assets pledged to them, which may have enjoyed waivers. It is also worth mentioning that as at today, there is complete duty waiver on commercial planes."
Giving further explanation, the Receivership stated that under the Cape Town Convention, "the Convention and Protocol are intended to reduce risks for creditors, and consequently, borrowing costs to debtors, through the resulting improved legal certainty. This promotes the granting of credit for the acquisition of more modern and thus more fuel-efficient aircraft.
"The intention is to give international assurance to the effect that where a debtor defaults in the payment of loans or leases over a plane, the creditor can easily take possession of the plane. Debtors therefore were required to issue an Irrevocable De-Registration and Export Request Authorisation (“IDERA”) to lenders and lessors over the pledged planes. This is judiciously managed in Nigeria by the Nigeria Civil Aviation Authority ("NCAA”).
"It is a false claim to suggest that a lender needs to go to court to enforce its rights under the Cape Town Convention. The public is invited to note that it it amounts to slight of hand for a borrower to issue an IDERA, enjoy a credit facility on the basis of the security conferred by the IDERA, then behind the lender, enter into another arrangement that will prevent the peaceful enjoyment of the IDERA."
It added, "We assure the public that Arik is not party to this. It is Johnson Arumemi-Ikhide that has done everything possible to prevent lenders from taking full benefit of their IDERA. If this farce is allowed, it portends grave dangers to the Nigerian aviation industry both in terms of access to leases and international aircraft financing. The international lending and leasing community is keenly watching this unfolding episode."
On allegations of Illegal Sale of Aircraft and Aircraft Parts by the Receivership, they stated: "It is crucial to dispel the baseless and unfounded claims made in the SR Publication regarding the sale of aircraft and aircraft parts during the receivership period. The facts surrounding specific aircraft transactions are detailed below:
"The Q-400, CRJ-1000, and CRJ-900 Aircraft. Arik's involvement with Export Development Canada ("EDC") in a financing transaction for the purchase of specific aircraft types is as follows:
"EDC is a Crown Corporation of Canada. It serves as the export bank to support the production and export of made-in-Canada goods; Johnson Arumemi-Ikhide approached Bombardier, a Canadian company, to purchase planes for his aviation business;
"EDC was approached to grant loans to support the purchase request; EDC agreed an acceptable structure to the lending requests taking into consideration Nigeria country risks, etc.
"EDC agreed to extend loans to an entity called JEM Leasing Limited towards meeting Arik’s equipment needs. The company was registered as a special purpose company in a tax haven. Arik had no shares in the company;
"JEM Leasing Limited purchased two Bombardier Q-400 aircraft with one spare engine (the “Q400 Aircraft”) and one Bombardier CRJ-1000 Aircraft. These were pledged to EDC;
"Furthermore, Johnson Arumemi-Ikhide pledged two CRJ-900 Aircraft (the “CRJ Aircraft”) owned by JEM Air Limited. JEM Air Company was also registered as a special purpose company in a tax haven. Arik had no shares in JEM Air Limited even though it was fully responsible for paying-off the loan on the planes owned by the comapny;
"JEM Leasing Limited leased the two Bombardier Q-400 aircraft with one spare engine (the “Q400 Aircraft”) and one Bombardier CRJ-1000 Aircraft to Arik (in Nigeria);
"IDERAs were duly executed in favour of JEM Leasing and EDC. These were duly noted by NCAA;
"Arik paid lease sums directly to EDC in settlement of the loan obligations of JEM Leasing Limited to EDC; Johnson Arumemi-Ikhide, on behalf of Arik (pre-receivership) approached the Federal Government of Nigeria for a waiver of customs duty on the planes. This was granted;
"Due to Arik's financial difficulties, pre-receivership, they defaulted on the lease obligations related to the Q400 and CRJ 1000 Aircraft; Post-receivership, the receivership team, after initial struggles with meeting lease rentals on the planes, decided to exit the CRJ line of planes. It further agreed not to interfere with EDC’s mortgage rights over the CRJs;
"To come to the decision, the receivership team took into consideration the history of technical availability of the planes, the lack of capital by Arik to buy or effectively overhaul engines, and the need to reduce the complexity of Arik’s operations with several aircraft types in the fleet. An independent valuation of the planes by specialist international company was conducted;
"EDC agreed to write off Arik’s outstanding lease obligations on the CRJ 1000 Aircraft owe to JEM Leasing Limited, which is under its control. Compared to their valuation, this was a good deal for Arik;
"EDC confirmed in a letter dated April 21, 2023, that they sold the two CRJ900 Aircraft. The decision to sell was made by EDC, not the receivership team of Arik; Regarding the CRJ1000 Aircraft, EDC negotiated with a buyer who chose to dismantle it into its constituent parts;
"It should be noted that JEM Leasing Limited, the owner of the CRJ Aircraft, confirmed in a letter dated May 5, 2023 that they sold the plane."
It further explained that the CRJ planes sold were not owned by Arik. The Receiver/Manager could not have sold or passed title on assets that are not covered by his receivership.
"In summary, the sale of the CRJ Aircraft was a lender-led transaction. Arik only exercised its rights to exit an unprofitable lease arrangement. Thus, the assertion that the Receiver/Manager of Arik sold the aircraft is without merit. It is patently false."
On the MJI Aircraft, it stated: "The allegation that the receivership team of Arik sold the Boeing 737-700 MSN 23640 aircraft with registration number 5N-MJI (“MJI”) is also baseless. The true circumstances surrounding MJI are as follows:
"The MJI was flown to Lufthansa Technik’s (LHT) facility in Malta for a C-Check in 2013, which was never completed. This occurred over 4 years before the commencement of the Arik receivership in February 2017;
"Over time, mainly prior to the receivership, the aircraft was cannibalized, rendering it unserviceable;
"The MJI lacked engines as they had been removed by the pre-receivership management of Arik; The MJI did not possess a valid Certificate of Airworthiness, and its cabin had been stripped in preparation for the incomplete C-Check; The aircraft was abandoned in a remote dump site at the Maltese Airport, due to infrastructure development by the airport authorities;
"In light of these circumstances, LHT in 2020 (seven years after the commencement of the C-check) advised a tear down to salvage parts from the plane; Please note that it was uneconomical to overhaul the plane. In any case, Arik lacked the capital for such a venture. There was therefore no way of flying same to Nigeria;
"The Receivership Team conducted a valuation of the plane prior to the tear down. The value was near scrap at $1.55m. Therefore, rather than lose the plane to the aircraft graveyard in Malta, the Receivership Team authorized LHT to tear down the plane and salvage parts from the aircraft, with the intention of returning value to Arik. However, LHT withheld all salvaged parts to offset substantial debts owed to them by the pre-receivership team of Arik.
"Arik owed LHT over $34 million; and MJI was pledged to the Asset Management Corporation of Nigeria (AMCON)."
Concluding the Receivership noted that Arik is co-operating with the Nigeria Customs Service, in respect of these allegations and they are being provided with comprehensive details of the Aircraft, which will demonstrate clearly, that there has been no misdeeds on its part.