Again, court orders BPE to hand over ALSCON to BFIGroup

ALSCON Photo: businessnews.com.ng

For the second time in two years, the Nigerian-American BFIG Corporation consortium has floored the Bureau for Public Enterprises, BPE, and UC RUSAL on claims over the ownership of Aluminium Smelter Company of Nigeria, ALSCON, Ikot Abasi, Akwa Ibom State.

Following BPE’s cancellation of the successful bid for the $3.6billion smelter by BFIG in 2004, the Supreme Court of Nigeria had, after over nine years of legal tussle, ruled on July 6, 2012 in an appeal No. SC 12/2008 that the cancellation of the bid by BFIG and the illegal transfer of the ownership of the company to UC RUSAL be reversed.

In the ruling, the Supreme Court ordered BPE to immediately hand over the company to BFIG, the company declared the winner of the bid in 2004.

The Supreme Court also asked the BPE to invite BFIG to renegotiate, sign and execute forthwith, “the mutually agreed Share Purchase Agreement, SPA, annexed to the applicant’s motion,”

But, rather than carry out the Supreme Court directives, the BPE continued to illegally work with UC RUSAL, conniving with its officials to run down the plant; an arrangement that resulted in the massive stripping of the assets of the company.

Consequently, BFIG returned to the Supreme Court to demand an order to compel BPE and UC RUSAL to obey its judgment.

The Supreme Court directed BFIG to return to the court of original jurisdiction with its request, since its 2012 unambiguous ruling was based on an appeal against a previous judgment by a lower court on the case.

Following the legal request by BFIG filed in 2013 for an order to compel BPE and UC RUSAL to comply with its previous ruling and the Supreme Court order of July 6, 2012, the Abuja Division of the Federal High Court on Tuesday delivered its judgment to again order the immediate handing over of the operation of ALSCON to the Nigerian-American consortium.

In his judgment, Justice Abdulkadir Abdulkafarati specifically ordered ‎BPE “to fully enforce, fulfill and give effect to the meaning and intendment of the judgment of the Supreme Court of Nigeria in appeal No. SC 12/2008 dated July 6, 2012 by signing and executing forthwith, the mutually agreed Share Purchase Agreement, SPA, annexed to the applicant’s motion.”

Justice Abdulkafarati pointed out that going by the SPA issued by BPE to BFIG, after being declared winner of the 2004 bid, the privatisation agency should sell ALSCON to the applicant at a purchase price of $410million.

According to the judge, ‎”The respondent (BPE) shall accept 10 per cent of the purchase price, or $41million to be paid within 15 days of this enforcement order.

“The balance of $369million to be paid as per the audited financial statement as at the date of this judgment, September 30, 2014,” the judgment directed.

The judgment was on the suit marked: FHC/ABJ/CS/901/2013 filed BFI Group Corporation, with BPE as the respondent.

The suit was for the enforcement of the Supreme Court dated July 6, 2012 in appeal No: SC/12/2008.

Besides, Justice Kafarati, noted the order in the Supreme Court’s judgment of July 6, 2012 compelling and mandating the respondent to forthwith take full control of ALSCON from anybody and from any further attack, and prepare same for handover/transfer to the applicant (BFIGroup) subject to the payment of the consideration provided for in the judgment of the Supreme Court.

Equally, the judge made consequential orders to the effect that the applicant (BFI Group), its employees and agents, should have full, uninterrupted, unrestricted access to ALSCON to enable them to conduct a first hand assessment of the business affairs of the company, including engineering, technical, financial, environmental, among others, as requested by the applicant.

The court equally ordered the Inspector General of Police, IGP and all other security agencies to ensure that the orders were fully enforced.

The dispute had arisen following BPE’s purported cancellation in 2004 of BFIG’s winning of the bid for the acquisition of ALSCON and transfer of same to UC RUSAL, which had earlier been disqualified by the National Council on Privatisation, NCP, for violating the privatisation guidelines for the bid.

Dissatisfied with BPE’s action, BFI Group had filed suit No: FHC/ABJ/CS/583/2004 against BPE and UC RUSAL at the Federal High Court, Abuja to seek an order of specific performance mandating the BPE to sell ALSCON to it in accordance with the terms of understanding/agreement for the sale of ALSCON dated May 20, 2004.

Following the refusal of both the High Court and Court of Appeal to grant its prayers, the plaintiff (BFIG) proceeded to the Supreme Court, which on July 6, 2012, granted all its prayers.

In its judgment, the Supreme Court had, among other things, held that, “An order of specific performance is hereby decreed directing the respondent to provide the mutually agreed Share Purchase Agreement (SPA) for execution of the parties to enable the plaintiff/appellant pay the agreed 10 per cent of the acceptable price of $410million (that is $41million) within 15 working days from the day of the execution of the SPA in accordance with the agreement dated 20/5/2004 and the balance 90 per cent of bid price shall be paid within 90 calendar days.

“An order for the defendant/respondent to accept 10 per cent of the bid price from the plaintiff/appellant within 15 days from the day of signing the SPA.

“An order of perpetual injunction restraining the defendant/respondent, its agents and management from inviting ant further bidding for the sale and acquisition of ALSCON in violation of the contract between the plaintiff/appellant and defendant/respondent and or from negotiating to sell, selling or transferring or handing over ALSCON to any person or persons in violation of the contract between the plaintiff/applicant and the defendant/respondent.

Moreover, the Supreme Court also ordered BPE to pay N50,000 cost to BFIG, BPE had neither obeyed the order nor the directive to pay the cost.


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