Court insists BPE DG must appear in person in contempt case over ALSCON

The Director General, Bureau of Public Enterprises (BPE), Alex Okoh
The Director General, Bureau of Public Enterprises (BPE), Alex Okoh

The Federal High Court in Abuja on Monday adjourned proceedings till June 10 on a contempt charge against the Bureau of Public Enterprises (BPE) and its Director-General, Alex Okoh.

On April 10, the Court in Abuja had issued BPE and Mr Okoh a formal notice to appear before it on Monday, May 13.

Both were ordered to come and show why they should not be committed to prison for their alleged serial defiance of the July 6, 2012 order of the Supreme Court on the ownership crisis of the Aluminium Smelter Company of Nigeria (ALSCON).

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.”

BPE DG continues to defy the court

At the resumed sitting of the court on Monday, Mr Okoh ignored the court order and stayed away. Counsel to BPE, Oluwasegun Umar, said he was also appearing for Mr Okoh.

But, counsel to BFIGroup, Patrick Ikwueto, a senior advocate of Nigeria, protested the nonappearance of Mr Okoh personally in court to defend the charge against him.

Mr Ikwueto said since the application was against Mr Okoh in his personal capacity, as a lawyer he should know appearance in person to answer to his charge is mandatory.

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He urged the court to compel Mr Okoh to appear in person on the next adjourned date. His refusal to honour the court summons, Mr Ikwueto said, showed a continued pattern of defiance and disobedience to the rule of law by BPE over the ALSCON matter.

Consequently, Justice Anuli Chikere ruled that Mr Okoh must appear before the court in person on the adjourned date of June 10 or risked being ruled against in his absence.

Background to the story

In 2004, BPE cancelled, in controversial circumstances, the declaration by the National Council on Privatisation 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 the 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.

Appeal Court reaffirms Supreme Court ruling

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 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.

The Supreme Court had confirmed the existence of a binding contract between BPE and BFIG for the sale of ALSCON.

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.

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.

BPE Ignores Appeal Court order

Regardless, BPE DG also ignored the order 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 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.

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 Form 49, a formal legal notice to BPE and 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.

BPE lied against PREMIUM TIMES

When PREMIUM TIMES received the court notice served BPE and Mr Okoh, it contacted both Mr Okoh and the spokesperson of BPE, Amina Tukur-Othman, on Sunday, April 14.

Apart telephone calls to both officials, text messages were sent to their known telephone lines as well as emails to their official and personal emails.

Mr Okoh did not answer calls to his telephone. He did not respond to the text message and emails. But, Mrs Tukur-Othman responded to the text message and promised to revert the following day when she is in the office.

PREMIUM TIMES delayed publication of the report till April 20 for BPE’s response.

Yet, six days after the publication, BPE circulated a statement accusing PREMIUM TIMES of not reaching out to hear their side of the story.

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