The High Court of the Federal Capital Territory, Maitama says enforcing the Supreme Court order of July 6, 2012 remains the most viable option to resolve the lingering crisis over the sale of the Aluminium Smelter Company of Nigeria, ALSCON, Ikot Abasi.
In his November 8 ruling in suit No FCT/HC/CV/522/2011 by BFIG against UC RUSAL and its allies, the judge, Jude Okeke, said enforcing the order was the best remedy for aggrieved parties in the dispute over the ownership of the $3.2 billion plant.
The Supreme Court had issued “an order of specific performance” directing the Bureau of Public Enterprises, BPE to reinstate BFIG as winner of the bid for the sale of ALSCON.
In its place, the apex court ordered the privatisation agency to provide the “mutually agreed share purchase agreement, SPA,” negotiated in 2004 for execution, to enable BFIG pay the agreed 10 per cent of the accepted price of $410 million within 15 working days from the date of the execution of the SPA.
Besides, the court placed an order of perpetual injunction restraining BPE from inviting any other bid for the sale of ALSCON.
In his 47-page judgement, the judge said the Supreme Court’s ruling had finally laid to rest contentions about the right to ALSCON.
“The Supreme Court held that the acceptance of the bid price of $410 million by BFIG for the acquisition of 77.5 per cent shares as core investor in ALSCON on June 14, 2014 constituted a binding contract with BPE, while the declaration of the company as the preferred bidder by the NCP (National Council on Privatisation) as valid, extant and irrevocable,” the judge ruled.
In February 2013, BFIG filed the case against BPE for the refusing to uphold the Supreme Court order for its reinstatement after the NCP had declared it the winner of the bid for ALSCON.
Other defendants in the case included UC RUSAL and its allies, JSC Bratsk Aluminium Plant, RUSAL America and Dayson Holding.
BFIG accused them of conspiracy to defraud, unfair competition and ‘tortuous interference’ in its contractual relations over prospective business advantage in the acquisition of ALSCON.
The Nigerian government and the Attorney General of the Federation, AGF were later joined, for failing to take steps to enforce the Supreme Court order.
Although ruling in the case was first scheduled for September 26, 2017, it was reserved till November 8, as the judge requested a postponement, to enable him recover fully from a medical condition.
Later, in his judgment, Mr. Okeke noted that the Supreme Court, by its July 6, 2012 ruling, agreed that BFIG was unfairly treated by the “illegal cancellation of the contract of the sale of ALSCON and subsequent resale of the plant to UC RUSAL.”
Regardless, the judge decided to strike out BFIG’s application, arguing that it was difficult granting it damages against the Federal Government of Nigeria and the AGF, despite their refusal to uphold rule of law.
The judge noted that since the Supreme Court had already made an order of specific performance in favour of BFIG against BPE, granting damages would not only amount to double compensation, but also be capable of creating legal chaos and lawlessness.
“BFIG cannot in one breath hold the judgment of the Supreme Court in which it was granted specific performance of the contract with the Nigerian government through BPE, and in another breath hold a judgment entitling it to damages against the same government. This will be the most absurd legal anomaly, which this court must not allow to happen,” the judge ruled.
“Even if the value of ALSCON has depreciated over the years due to mismanagement…, an enforcement of the (Supreme Court) order, taking its current value into consideration, is more attainable and will avail the plaintiff (BFIG) at a time its contract appears frustrated by a combination of circumstances, rather than action of this nature,” the judge explained in his ruling obtained exclusively by PREMIUM TIMES on Friday.
In his reaction to the latest court ruling, Minister of Mines & Steel Development, Kayode Fayemi, through his spokesperson, Yinka Oyebode, directed PREMIUM TIMES to the NCP and BPE ”for clarification.”
“As far as the Ministry is concerned, the National Council on Privatisation has met the conditions outlined by the Supreme Court,” Mr. Oyebode said. He asked the reporter to contact BPE for further clarification.
However, calls to the DG of BPE, Alex Okoh’s telephone did not connect, as it was switched off. An aide, who requested that his name should not be mentioned, said Mr. Okoh traveled outside the country.
BPE’s spokesperson, Chukwuma Nwokoh, who later responded to a text message from this reporter said: “We (BPE) have no comment to the development. Thanks.”
Since 2012, government officials had done every other thing, except enforce the Supreme Court order to resolve the crisis.
In January 2013, seven months after the Supreme Court ruling, BPE sent an offer letter to BFIG for it to “Purchase 77.5 per cent shares of the ALUMINIUM ‘SHELTER’ COMPANY OF NIGERIA, ALSCON instead of ALUMINIUM ‘SMELTER’ COMPANY OF NIGERIA, ALSCON.
The letter was accompanied by a 16-page SPA, instead of the 58-page SPA sent earlier on October 8, 2012 for BFIG’s review and approval.
The execution of the SPA was stalemated, as BFIG rejected it on the ground that it was not interested in acquiring the shares of the ‘ALUMINIUM SHELTER COMPANY OF NIGERIA’.
In April 2017, Minister of Mines & Steel Development, Kayode Fayemi, visited ALSCON and was received by UC RUSAL’s managing director, Dimitriy Zaviyalov.
During the visit, Mr. Fayemi assured the Russians of government’s commitment to “free the complex of any encumbrances”, regardless of the pending Supreme Court rulings.
Close watchers of the crisis had criticised Mr. Fayemi over the visit, But, he insisted there was no ulterior motive, other than an attempt to find solutions to the crisis in the larger interest of Nigeria.
Later in August, the minister was also mentioned in a fresh attempt by UC RUSAL to negotiate with BFIG and get it to trade its right to ALSCON guaranteed by the July 6, 2012 Supreme Court order.
Mr. Fayemi, along with BPE DG, Alex Okoh, and other officials, were said to be present in the meeting along with UC RUSAL agents, where overtures were reportedly made to BFIG.
The minister, however, said the meeting was still part of his, ”effort to find an amicable settlement of the crisis.”
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