ALSCON: BFIG writes BPE, threatens contempt proceedings against agency, DG

ALSCON Plant
ALSCON Plant

The legal counsel to BFIGroup, the Nigerian-American consortium declared the winner for the Aluminium Smelter Company of Nigeria (ALSCON) in 2004, has written to the Bureau of Public Enterprises (BPE) to demand the immediate and unconditional compliance with the July 6, 2012 order of the Supreme Court on the ownership of the plant.

Patrick Ikwueto, a senior advocate of Nigeria (SAN), wrote to the Director General of BPE, Alex Okoh, on March 27, 2019, frowning at BPE’s introduction of “strange and unilateral terms to the mutually agreed share purchase agreement (SPA) of June 2004.

A copy of the letter obtained by PREMIUM TIMES on Monday in Abuja was titled: “Re: Aluminium Smelter Company of Nigeria Share Purchase Agreement – Compliance with the Court of Appeal Judgment Dated 11th Day of January, 2019.”

The letter was reportedly received in the DG’s office on March 28.

In the letter, Mr Ikwueto threatened to commence contempt proceedings against Mr Okoh and BPE for alleged conspiracy to frustrate the enforcement of the July 6, 2012 order of the Supreme Court on the ownership crisis in ALSCON.

“In view of the nature of this transaction, we are constrained to inform you that unless you take immediate steps to forward the complete SPA (Share Purchase Agreement) with the requisite Annexures as enjoined by the Judgment/Orders of the Supreme Court, we shall take steps to issue necessary Forms 48 and 49 to activate committal proceedings against you and the BPE for continued disobedience of Judgement/Orders of Court,” he said.

Under the Civil Process Act, Cap. 551, Laws of the Federal Capital Territory (FCT) and the Judgment Enforcement Rules, Form 48 contains a copy of the court order to be served on the respondent. Where the respondent fails to obey, Form 49 is issued for committal for contempt.

Backstory

The National Council on Privatisation (NCP) declared BFIG winner of the bid for ALSCON with an offer of $410 million. But, the bid was cancelled by the Bureau of Public Enterprises (BPE) in controversial circumstances.

After eight years of legal battle, the Supreme Court on July 6, 2012 ruled in favour of BFIG and ordered the BPE to enforce BFIG’s right as the winner of the bid.

Despite the order, BFIG’s Chief Executive, Rueben Jaja, said BPE not only refused to obey, it has continued to frustrate his company’s efforts to takeover ALSCON.

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Last January 11, the Appeal Court presided over by Abdu Aboki reaffirmed the sanctity of the Supreme Court judgment and again ordered its full enforcement by BPE.

Specifically, the judge directed BPE to “provide the mutual agreed Share Purchase Agreement (Exhibit BPE1) for execution by the parties.”

The agreement, he said, would “enable BFIG to pay the agreed 10 per cent of $410 million (about $41 million) within 15 working days from the date of the execution of the Share Purchase Agreement by the agreement dated May 20, 2004.

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“The balance of 90 per cent of the bid price, shall be paid within 90 calendar days as ordered by the Supreme Court,” Mr Aboki said.

Following the ruling, BFIG, through its legal counsel, wrote to the BPE on January 14, 2019, to draw its attention to the consequential orders of the Appeal Court.

BPE’s ‘response’

On February 4, BPE sent a response to BFIG, accompanied with a 16-page SPA. Mr Ikwueto told PREMIUM TIMES the SPA was not the original approved by the court, as it was not accompanied with any of the 17 annexures, acknowledged as key parts of the SPA.

Mr Ikwueto said the SPA ordered by the Supreme Court was accompanied with annexures classified by Section 19.1 include a financial statement of ALSCON for the year ended December 31, 2004; ALSCON Post-Acquisition Plan; List of Liabilities of ALSCON; List of Facilities of ALSCON; List of land Plots of ALSCON; List of Compensation Scheme of Employees of ALSCON, and List of Employee Benefit of ALSCON.

The others include: List of Intellectual Property of ALSCON; List of Material Contracts of ALSCON; List of Banks of ALSCON; List of Government Authorities of ALSCON of ALSCON; Exhibit No. 1: Natural Gas Sales and Purchase Agreement; Exhibit 3: Federal Republic of Nigeria Officials Gazette, and Exhibit 4: Power of Attorney.

In the latest letter to BPE, Mr Ikwueto accused the agency of serial attempts to frustrate his client from claiming ALSCON on the basis of the Supreme Court’s order.

He reminded BPE that it was commercially and legally impossible to execute the SPA in compliance with the Supreme Court orders without the SPA “as a complete document comprising the annexures”..

On February 27, 2019, he said BFIG executed and delivered to BPE for counter signature the mutually agreed SPA (Exhibit BPE 1) with all annexures as provided by BPE in 2004 and reproduced in 2012 pursuant to Supreme Court judgement on July 6, 2012.

On March 4, he said BPE executed the SPA, “but removed ALL of the annexures, returned an incomplete document to BFIG”.

On March 5, Mr Ikwueto said BFIG again wrote to BPE to demand the execution of the SPA, along with the agreed Annexures in 2004 and reproduced by BPE on October 16, 2012 after the Supreme Court order.

“BPE is fully aware the assets BFIG bided $410 million for in 2004 is no longer there, as UC RUSAL/Dayson Holding Limited stripped the value from $1.03 billion in 2004 to less than $100 million in 2013 as reported by KPMG audit firm,” Mr Ikwueto said.

Besides, he said, ALSCON liabilities has gone from zero to $165 million during same period with no meaningful production while BPE sat on the Board.

He said the continued refusal of BPE to allow BFIG takeover ALSCON was as a result of its determination to cover-up the monumental fraud against the Nigerian people.

BPE ‘not perturbed’

“I haven’t seen the letter (from the counsel to BFIG),” Mr Okoh told PREMIUM TIMES on the telephone on Monday. “But, it’s a free country. Anybody can initiate any proceeding against anybody. So, he is welcome with whatever action he wants to take. I haven’t seen the letter.

“If that is what he is threatening to do, he is at liberty to approach any court of law for whatever relief he seeks. But, I haven’t seen the letter. When I see the letter, I will respond to him appropriately.”

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