ALSCON: Court threatens to jail BPE DG

ALSCON Plant
ALSCON Plant

The Federal High Court in Abuja has given the Director-General of the Bureau of Public Enterprises (BPE), Alex Okoh, a final notice until May 13, to show why he should not be committed to prison for his alleged defiance of the July 6, 2012, order of the Supreme Court on the ownership crisis of the Aluminium Smelter Company of Nigeria (ALSCON).

In 2004, BPE cancelled, in controversial circumstances, the declaration by the National Council on Privatisation (NCP) of a Nigerian-American consortium, BFI Group, as the preferred bidder for ALSCON.

In 2006, BPE handed over the ownership of the $3.2 billion plant to UC RUSAL, which was previously disqualified during the bid, by NCP, for violating the bid guidelines.

BFIG contested the cancellation at the Federal High Court in Abuja.

After over six years of legal battle, the Supreme Court, in a unanimous judgment on July 6, 2012, nullified BPE’s decision.

The apex court gave an order of specific performance for the enforcement of the subsisting contract between BFIG and BPE over ALSCON sale.

Specifically, the Supreme Court ordered BPE to immediately retrieve ALSCON from UC RUSAL and prepare to hand over to BFIG by issuing a mutually agreed share purchase agreement (SPA) approved at the end of negotiations in 2004.

More than seven months after the judgment, and the refusal of BPE to enforce its order, BFIG in 2013 filed a petition at the Appeal Court for the enforcement of the Supreme Court order. The application was granted.

In 2014, BPE, in defiance of the Supreme Court’s order, filed an application at the Court of Appeal against the decision of the Federal High Court in Abuja.

After a prolonged hearing, the Appeal Court presided by Justice Abdul Aboki on January 11 this year, reaffirmed the sanctity of the Supreme Court ruling and demanded immediate compliance by BPE. The directive was disobeyed.

On March 27, BFIG, wrote to BPE DG, Mr Okoh, through its lawyer, Patrick Ikwueto, to serve notice threatening to issue Forms 48 and 49 to activate committal proceedings against him and the BPE.

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 for compliance. Where the respondent fails to comply, Form 49 is issued for committal for contempt.

On April 2, BFIG actually commenced the contempt proceedings against Mr Okoh, after serving him the Form 48. Both the DG and BPE ignored the court proceedings.

On April 10, the Federal High Court in Abuja issued a formal notice to BPE and its DG (Mr Okoh) threatening to commit them to prison for their continued disobedience of the directive of the Appeal Court and the order of the Supreme Court in respect of the ownership crisis in ALSCON.

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The notice read: “TAKE NOTICE that this Honourable Court will be moved on the 13th day of May 2019 at the hour of 9 O’clock in the forenoon or soon thereafter as Counsel may be heard on behalf of the Applicant praying this Honourable Court for:

1. AN ORDER of this Honourable Court for Committal to Prison to be made against: a. Alex Okoh, Director General, Bureau of Public Enterprises; b. Bureau of Public Enterprises for disobeying and refusing to fully enforce the judgment/orders made by the Supreme Court in Appeal No. SC 12/2008 BFI Group v, BPE dated 6 July 2012 and the subsequent Enforcement Order contained in the Judgement of the Court of Appeal No. CA/A/637/2014 BPE v. BFI Group Corporation dated 11 January 2019.”

The court said it was in the “interest of justice for it to exercise the powers for committal in order to enforce the full obedience and compliance with the binding orders of the Supreme Court and Court of Appeal.”

The grounds for the committal notice included timelines of the contempt charge against Mr Okoh and BPE.

Timelines for Contempt Charge

In 2013, the court said the suit commenced with an originating summons by BFIG seeking the enforcement of its 2004 binding agreement with BPE on the basis of an order of specific performance by the Supreme Court in its judgment of July 6, 2012.

In the judgment, the Supreme Court confirmed the existence of a binding contract between BPE and BFIG for the sale of ALSCON.

Consequently, it ruled as follows: “(i) An order of specific performance is hereby decreed directing BPE to provide the mutually agreed Share Purchase Agreement (SPA) for execution by the Parties to enable BFIG pay the agreed 10 percent of the accepted bid price of $410 million (about $41million) within 15 working days from the date of the execution of the SPA in accordance with the agreement dated May 20, 2004 and the balance of the bid price shall be paid within 90 calendar days.”

Also, the Supreme Court ordered BPE to accept the payment of 10 per cent of the bid price from BFIG. It equally issued a perpetual injunction restraining the privatisation agency, privies, management or others from inviting further bids for the sale of ALSCON in violation of its subsisting contract with BFIG.

In addition, the court restrained BPE from selling, transferring or handing over ALSCON to any person in violation of its contract with BFIG.

DOWNLOAD: Court motion on notice for the imprisonment of BPE, DG (FORM 49)

In 2013, after BPE refused to obey the court order for more than seven months, BFIG petitioned the Federal High Court in Lagos to seek the enforcement of the order. The application was granted.

But, in 2014, BPE filed an appeal. On January 11 this year, the appeal court in its judgment set aside the ruling of the Federal High Court in suit number FHC/ABJ/CS/901/2013 filed by BPE. The high court had ruled that BFIG had no binding agreement over ALSCON sale.

But in setting aside the judgment, the Appeal Court reaffirmed the sanctity of the July 2012 Supreme Court judgment and again ordered its full enforcement by BPE.

Regardless, BPE DG also ignored it and went ahead to announce almost a month later on February 2 of ongoing consultations by BPE to resolve critical issues (including gas supply and price) for the reopening of the plant, to enable the “core investor, UC RUSAL/Dayson Holdings” operate profitably.

On January 14, BFIG wrote to BPE to draw its attention to the consequential orders of the appeal court. It got no response from BPE.

On January 25, BFIG wrote again to BPE to request for a clean copy of the SPA for execution in compliance with the subsisting judgment/orders of the Supreme Court as reinforced by the Appeal Court. Still, no response came from BPE.

On February 4, BPE finally sent a response to BFIG, accompanied by a reproduced 16-page SPA. Counsel to BFIG said the SPA was not accompanied with any of the 17 annexures acknowledged as key parts of the SPA.

The annexures 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 letter, BFIG said Mr Okoh was categorical about BPE’s refusal to provide BFIG with the complete SPA containing the annexures, which formed part of the mutually negotiated and agreed SPA in July 2004.

On February 27, BFIG said it 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 judgment on July 6, 2012.

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

On March 5, he 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.

No further response came from BPE, whose DG, Mr Okoh, dared BFIG to go ahead with its threat to commence contempt proceedings against him and the privatisation agency.

On March 11, Mr Ikwueto said Mr Okoh asked BFIG to comply with the orders of the court by depositing the agreed $41 million.

He said the BPE DG said “deliberations on the annexures should be deferred till both parties (BPE and BFIG) have complied with and executed the judgments of the Supreme Court and the Court of Appeal.”

“If the Bureau does not receive an executed copy of the mutual agreed Share Purchase Agreement, and payment of the agreed sum of $41 million, representing 10 per cent of the bid price within 15 working days, the Bureau will consider itself as being no longer bound by the agreement,” Mr Okoh said.

He said BPE would equally consider itself not contractually bound to BFIG if the balance of $369 million is not paid within 90 calendar days of the payment of $41million.

In its motion on notice, BFIG urged the court to enforce its order as doing otherwise will allow BPE and Mr Okoh “continue in the scheme to unlawfully retain/hand over ALSCON to Dayson/UC RUSAL in patent disregard of the orders of specific performance and injunction decreed by the Supreme Court in July 2012.

BPE, Okoh Keep Mum

When contacted to get his reaction to the latest order of the court, Mr Okoh did not answer calls to his telephone. He also did not respond to the text messages sent to him.

Also, the spokesperson of BPE, Amina Tukur-Othman, did not answer calls to her telephone on Sunday, neither did she respond to the text messages sent to her.

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