Time for Malami to Resolve BPE-ALSCON Dispute – THISDAY Newspapers

With the last week’s decision of the Court of Appeal ordering the arrest and imprisonment of the Director-General of the Bureau of Public Enterprises, Mr Alex Okoh, stakeholders are urging Abubakar Malami as the nation’s chief law officer to compel the agency to execute the various courts’ decisions by handing over the Aluminium Smelter Company of Nigeria to BFIGroup, Alex Enumah writes
For refusing to obey the judgment of the Supreme Court and transfer the Aluminium Smelter Company of Nigeria (ALSCON) to BFIGroup, the Court of Appeal in Abuja last week ordered the arrest and imprisonment of the Director-General of the Bureau of Public Enterprises (BPE), Mr Alex Okoh.
In a unanimous ruling, Justices Stephen Adah, A. Mustapha and Kenneth Amadi affirmed the judgment of Justice Anwuri Chikere of the Federal High Court which had ordered the imprisonment of Okoh.
The justices held that Okoh has been in criminal contempt of court for refusing to execute the orders of the Supreme Court. They added that he must be remanded in prison for a minimum of 30 days “until he purges himself of the contemptuous acts of disobedience of the orders of the Supreme Court.”
ALSCON, located at Ikot Abasi in Akwa Ibom State, has been the subject of an ownership struggle between UC RUSAL and a Nigeria-American consortium, BFIGroup since the federal government privatised the firm in 2004.
Specifically, following the privatisation process, which culminated in the final bid for ALSCON held on June 14, 2004, BFIG had emerged as the preferred bidder, But to the surprise of everyone, BPE cancelled the outcome of the bid in controversial circumstances.
The trouble, however, started when BFIG emerged as the preferred bidder for ALSCON after a Russian company, UC RUSAL, was disqualified by the National Council on Privatisation (NCP) for violating the bid guidelines. But the BPE later disqualified BFIG too, allegedly for failing to meet the deadline for the payment of $41 million, being 10 per cent of the $410 million offer for the plant. Instead, the Bureau re-invited UC RUSAL for fresh negotiations, despite the earlier disqualification of the company by the NCP.
BFIG responded by approaching the court to declare a legal dispute, which dragged for more than eight years till the Supreme Court in a unanimous ruling on July 6, 2012, declared as illegal, null and void the handing over of ALSCON to UC RUSAL by BPE based on the agreement reached at their negotiations in 2006.
The apex court held that BFIG was the rightful winner of the bid for the ALSCON held in 2004. It consequently upheld the appeal by BFIG against the decision of BPE to disqualify it as the preferred bidder for ALSCON after winning with a superior $410million offer.
A unanimous judgment read by Justice John Fabiyi said that because the company had fulfilled all conditions stipulated in the bid guidelines issued by the BPE and the NCP before the commencement of the process to privatise the aluminium plant, including the payment of a $1million cash bid bond, and was cleared to stand for the bid, which it won, it had a subsisting and valid contract that is binding. It, therefore, directed that BFIG be recognised immediately as the authentic winner of the bid for the plant.
The court asked BPE to invite BFIG and conclude negotiations they began in 2004 to establish a mutually agreed share purchase agreement for execution. The order of the court also included a perpetual injunction restraining BPE and its agents from unilaterally terminating the contract to BFIG.
THISDAY gathered that rather than inviting BFIG to open negotiations based on the order of the apex court, BPE issued a controversial offer letter dated January 29, 2013, entitled: “Offer to Purchase 77.5% shares of the aluminium shelter company of Nigeria, ALSCON,” whatever that meant.
The letter was accompanied by a 16-page Share Purchase Agreement (SPA), dated May 20, 2004, for execution by BFIG, rather than the 58-page agreement transmitted to it (BFIG) on October 8, 2012, for review and approval.
That agreement had captured detailed issues jointly negotiated with UC RUSAL in 2004 and later executed by the Russians on February 3, 2006, after ALSCON was transferred to them by BPE.
BFIG, on receiving the letter, wrote to BPE seeking clarifications on the discrepancy on the unilateral “invitation to acquire aluminium shelter,” instead of the aluminium smelter it did bid for and was declared the preferred bidder.
However, rather than comply with the Supreme Court order, BPE, as it did in 2004, again revoked the offer, ignoring the discrepancies in the offer letter and SPA, which BFIG had sought clarifications to on more than one occasion.
The revocation of the offer had compelled BFIG to return to the court to seek the enforcement of the ruling in 2013. But, BPE joined UC RUSAL to oppose the application. However, the court in its ruling in September 2014 directed BPE to “fully enforce and give effect to the meaning and intendment of the judgment of the Supreme Court of July 6, 2012,” a resolution that was again ignored.
Still not satisfied, the Russians through Dayson Holdings applied on behalf of UC RUSAL in November 2015 to demand the Supreme Court to, not only review its July 6, 2012 judgment, but also set it aside altogether, and confirm it as the owner of ALSCON.
The court on July 11, 2016, in a unanimous judgment, by a five-member panel led by Justice Olabode Rhodes-Vivour, rejected the request as incompetent and without merit and consequently dismissed same.
Despite the Supreme Court ruling, the ownership of ALSCON has not changed. Even at a point, the House of Representatives Committee on Privatisation and Commercialisation had sought to intervene in the matter. At the end of a public hearing on the non-implementation of the Supreme Court ruling, it urged BPE to comply with the rule of law and take steps to take control of ALSCON from UC RUSAL. Still, nothing happened.
Even the Court of Appeal in a judgment delivered on January 11, 2019, by Justice Abdu Aboki had reaffirmed previous rulings that ordered BPE to enforce the 2012 Supreme Court ruling on the ALSCON crisis. Specifically, the Appeal Court directed BPE to “provide the mutually agreed SPA (Exhibit BPE1) for execution by the parties.”
The SPA, the judge said, would “enable BFIG to pay the agreed 10 per cent of $410million (about $41million) within 15 working days from the date of the execution of the Share Purchase Agreement by the agreement dated May 20, 2004.
“The balance of 90 per cent of the bid price shall be paid within 90 calendar days as ordered by the Supreme Court,” he said in his judgment.
Despite multiple court rulings, the privatisation agency has refused to respect the apex court’s order and transfer ownership of the firm to BFIG.
In April 2019, BFIG initiated contempt proceedings against the BPE and Okoh at the Federal High Court in Abuja.
In her ruling, Justice Anwuri Chikere held that the continued refusal to obey the Supreme Court order by BPE and Okoh was a fundamental violation of the rule of law, “which portrays the government as lawless.”
The judge, consequently, ordered that Okoh be remanded in prison for at least 30 days until he purges himself of the continued disobedience of the court and further contemptuous conduct.
But, following an appeal No. CA/A/117/M/2019, filed before the Appeal Court, a panel of three, consisting of Justice S. J. Adah, Justice R. M. Abdullahi and Justice M. B. Idris in, on December 24, 2019, directed a stay of execution of the order pending the hearing and determination of the motion fixed for January 20, 2020.
After extensively examining the case, the appellate court on January 20, 2022, upheld the judgment of Justice Chikere ordering the arrest and imprisonment of Okoh.
In a unanimous ruling, the court held that the BPE DG needs to be kept away until he purges himself of the contemptuous acts of disobedience of the orders of the Supreme Court.
Even though President Muhammadu Buhari government knows that the dispute predates the administration, it is believed that the number of judgments, ruling and orders so far delivered on the case during the lifetime of his administration and the refusal to comply with them, certainly speak volumes about his stance on the rule of law.
In reacting to the latest ruling of the Appeal Court, while the BFIGroup hailed the judgment, saying it is committed to the rule of law in the country, the BPE DG, Okoh, said it is part of a grand scheme by group to possess government asset through inordinate avenue. Consequently, Okoh has dared the court, vowing “not to be intimidated into doing the wrong thing.”
He said rather than him and BPE being sent to jail, BFIGroup and its promoters should.
“The judgment of the Supreme Court was very clear. We (BPE) gave them (BFIgroup) the SPA (share purchase agreement) as per the Supreme Court ruling. They signed it, thereby accepting the terms, but did not make the payment of 10% ($41m) as stated by the Supreme Court.
“They even misled the Central Bank of Nigeria into believing that a payment was made which was never received. This is a grand scheme to possess an asset of the government through inordinate avenue.
“Why can’t they just pay the money and take the asset. This should be very simple. Pay and take the asset if there are no other sinister or ignoble motives. This is quite unfortunate,” Okoh said in a WhatsApp message to MEDIATRACNET on Friday.
Insisting on his innocence in handling the transaction, Okoh said:”I will continue to discharge my duties to the government and my nation with all sense of duty and integrity.
“I was appointed in April 2017 and was not even in office when the transaction was done. And so I have no interest whatsoever than to be true to my conscience and protect the interest of the Federal Republic of Nigeria faithfully,” he added.
Okoh said since the Supreme Court ruling was very specific on payment of $410million bid price, the real contempt would have been to do otherwise and give BFIGroup an SPA for $250 million. I will not be intimidated into doing the wrong thing,” he said.
With the latest judgment of the Court of Appeal, stakeholders in the justice sector are urging the Attorney-General of Federation and Minister of Justice, Abubakar Malami, in his capacity as the chief law officer of the country, to compel the BPE to obey the decisions of the Supreme Court in the interest of justice and fairness; the same way he swiftly compelled the Lagos State Government to obey the judgment of the apex court in the legal battle between Magodo Estate residents and landlords’ association recently which was delivered same year with the BFIG vs BPE case.
“Since the judgment of the Supreme Court in the BFIG vs BPE case was delivered the same year with the Magodo case (2012), the AGF, Malami has to also ensure that the BPE is told in clear terms that it cannot continue to be above the law of the land. He equally needs to let the BPE know that it cannot continue to ridicule the courts by not obeying their decisions as this would mean sending a dangerous message to government agencies,” said a lawyer who did not want his name mentioned.

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