INTERVIEW: Why we’re yet to pay for ALSCON years after Supreme Court order — BFIG

BFIG President, Reuben Jaja, is very bitter. After being declared the winner of the bid for the Aluminium Smelter Company of Nigeria (ALSCON) in 2004, he spent another eight years to fight a bitter legal battle up to the Supreme Court to upturn the decision by the Bureau of Public Enterprises (BPE) to cancel the win in 2012.

Another eight years running, he is still fight in various courts in Nigeria and abroad to get BPE to respect the order of the Supreme Court on ALSCON. On Tuesday, he will appear at the Appeal Court in Abuja to get the Director General of BPE, Alex Okoh, imprisoned for his serial disobedience of the Supreme Court order for 16 years.

On Friday, Mr Jaja spoke with journalists in Abuja over his travails and frustrations and on why BFIG has not been able to pay for ALSCON years after the Nigerian-American consortium won the bid and was confirmed by the Supreme Court. Excerpts:

PT: It’s going to 16 years cumulatively since BFIG was declared winner of the bid for ALSCON by the National Council on Privatisation (NCP), and about eight years after the Supreme Court ordered BPE to reverse its decision to cancel the win. Why is BFIG yet to pay for ALSCON? BPE says the consortium has no money to pay?

JAJA: I came home from the United States as a member of Nigerians in Diaspora to support the economic rehabilitation and development of our nation shortly after the military regime.

We came to help revive one of Nigeria’s strategic assets called ALSCON. We were advised by BPE to put together a consortium for that purpose.

When Olusegun Obasanjo came to power, he visited us then in the Diaspora. He asked us to come and meet with him in Atlanta, Georgia. We jubilated that our country was going to bounce back. We trooped to Atlanta to meet with our President.

That was the session I mustered the courage to lead a team to come to Nigeria to take over ALSCON and rehabilitate it for the benefit of not only the Niger Delta people, where it is located, but also for the entire nation.

We came, bided for ALSCON and won. But, I was naïve. I did not know winning ALSCON was the beginning of not only my nightmare, but also our struggle.

PT: What do you mean?

JAJA: Let me summarise this complex transaction chronologically in three distinct levels of activities involving ALSCON.

It has been widely reported by BPE in the media that they took ALSCON away from BFIG and gave to UC RUSAL because we could not pay for the plant several years after the Supreme Court ruled in our favour on July 6, 2012.

But, let me tell you, BPE is telling a blatant lie from the pit of hell. It is very very annoying. I will prove to you with facts and documents.

BFIG won ALSCON in June 2004. It is apparent we were not the preferred choice to the powers that be. Immediately BFIG won ALSCON, there was an effort to take it away right from the closure of the bid.

From 2004, BPE summoned the media and told them BFIG could not pay for the bid offer (of $410 million).

BPE told this blatant lie in 2004. In 2005, BPE summoned the media and shared the same blatant lie again. Same in 2006, 2007, 2008, 2009, 2010, 2011 and 2012 – a period of eight years that the media was bamboozled and fed with nothing but barefaced lies.

But, on July 6, 2012, the Supreme Court in a unanimous vote declared that BPE was telling a lie, and that our case was “meritorious to the extreme.”

The entire five Justices of the apex court, including the current Chief Justice of the Federation, Tanko Mohammed, said: “BPE, you are telling a lie. You have not even got to a point of payment in the transaction. All what you have been talking about payment for ALSCON is a lie, because you have not even given BFIG the share purchase agreement (SPA) to sign in line with the approved bid guidelines.”

But, most media houses keep writing these lies from BPE. You can see why BFIG is so bitter. Why would an agency of government bamboozle the media with so much lies to mislead the nation?

PT: Specifically, what was the ruling of the Supreme Court?

JAJA: The Supreme Court was unambiguous in its ruling giving an order of specific performance by BPE. It ordered: Terminate your contract with UC RUSAL; provide BFIG with a mutually agreed SPA to sign before talking about payment.

But, all through these eight years, press conference upon press conference, BPE fed the media with lies and the country was misled on the acquisition of such a strategic asset, just because of personal and self-aggrandizement of a few opportunists.

PT: But, BPE says it has given BFIG the SPA on more than one occasion and you were unable to pay the money?

JAJA: That’s another lie. In 2012, after more than four months of the Supreme Court’s judgment, the BPE DG at the time agreed to give BFIG the same 58-page SPA given to UC RUSAL in 2006 to sign.

The document contained almost all what BFIG agreed to as bidders at a special technical conference of all parties to the bid in 2004, including BPE and all the bidders.

In the meeting, it was agreed that whoever emerges winners will be invited by the BPE to negotiate the SPA, after which 15 working days will be allowed for the winner to make payment.

Immediately BFIG received the SPA, it did not waste time to sign it. This was in October 2012. In the transmittal letter to BPE, BFIG requested from BPE to provide its account coordinates to deposit the $41 million initial payment.

One month passed, BPE did not give any response. We wrote them a reminder. Still no response between October 2012 when BFIG returned the completed SPA and January 2013.

Later, they wrote to apologise that they were organising so we can go and inspect the property and conduct a technical audit, so that we know what we were buying.

When the then BPE DG (Bola Onagoruwa) refused to change the decision, she was fired from office. After four months, all of a sudden, BPE abandoned the 58-page agreement we had signed and returned to them.

The new DG then (Benjamin Dikki) came in January. His first job was to give BFIG a brand new agreement. This time, only 16 pages.

BFIG reviewed this 16-page document, and wondered how BPE dropped the agreement from 58 pages approved by the Supreme Court to just 16 pages.

In the new agreement, key attachments, including the source of gas supply, were removed. Everything that would make BFIG successful were carefully uprooted by BPE from the agreement.

BFIG said this was not commercially viable, as no serious commercial bank would ever give a dime for such nonsense.

To worsen the situation, BFIG had already submitted the other signed 58-page agreement to its Board of Directors, bankers, investors and lawyers in the United States. BPE had assured us in writing that all was well. But, that is where the new fight started after the Supreme Court ruling.

Between 2012 and 2018, BPE continued to invite the media to misinform them that BFIG could not pay, whereas the (real) SPA has never even been given to us.

PT: What happened after BPE issued the 16-page SPA?

JAJA: We went back to the Supreme Court to complain that BPE had refused to obey its order. The Supreme Court said it had delivered its judgment in simple, plain language, and asked BFIG to go the lower court and enforce the judgment.

That is how we went back to the lower court. So, between 2012 and 2018, the lower court enforced that judgment in our favour, and told BPE that the 58-page agreement is what BFIG must sign, because that is the only agreement others, including UC RUSAL, had signed.

BPE kicked and rejected it. It appealed the order. At the Appeal Court, they abandoned their application there and refused to file their papers.

At the ruling, the Justices of the Appeal Court said refusing to file its case was BPE’s tactics to frustrate the Supreme Court judgment.

In 2018, the Appeal Court again ruled in BFIG’s favour and asked BPE to go and sign the SPA, ending another six years of lies by BPE that BFIG could not pay.

PT: Was it that all these years neither the Supreme Court nor Appeal Court justices could not see that BFIG could not pay? Why did they keep giving judgments in its favour?

JAJA: No! They had seen the facts that BPE had not even reached the point of demanding for payment, and they have not given BFIG the SPA to sign.

Moving ahead, BPE gave BFIG the agreement the Appeal Court judge recommended in 2018. We again signed it and returned along with about 19 different attachments under the annexures to the SPA.

These annexures include the audited financial statements of ALSCON 2004; authority to sell ALSCON; gas agreement and all the foundation documents BFIG completed in 2004 prior to the bid.

BFIG signed all the six copies and returned to BPE and requested an appointment on the final day BPE was to sign its portion.

Surprisingly, BPE countersigned and returned only two copies to BFIG, but detached all the 19 annexures, making the SPA BFIG signed incomplete, completely in defiance of the Supreme Court order, setting up another round of confrontation.

They said BFIG should come for the renegotiation of the annexures. Our lawyers reminded them that the Supreme Court ordered for a mutually agreed SPA to be given to BFIG and not bits. BPE refused.

PT: So what next step did BFIG take?

JAJA: BFIG threatened to proceed with enforcement action. When they refused, BFIG initiated Forms 48 and 49. Form 48 was to warn BPE that it was in disobedience and contempt of the court. We served it on BPE.

We waited for some time before serving another one. When all failed to persuade BPE, we proceeded to file Form 49, where DG of BPE, Alex Okoh was invited to defend himself. He refused to honour the invitation and sent his lawyers.

After looking at the case, the judge in his ruling called BPE “a serial disobedient organisation.” He said the court would not watch as the Supreme Court of Nigeria was being thrashed by any agency of government. The DG of BPE was ordered remanded in jail for a minimum of 30 days.

Those are the facts. That is the truth. As we stand now, the SPA has not been given to BFIG by BPE as ordered by the Supreme Court.

PT: But suppose BPE decides to respect the Supreme Court order today and ask BFIG to make payment, do you have the money?

JAJA: Let me say this. BFIG came into Nigeria as part of a consortium of investors, like I said earlier. It will shock anybody to know that we brought in £2.5 billion to Nigeria before the bid for ALSCON. That money was lodged at Union Bank of Nigeria. Immediately the money landed in Nigeria, Union Bank took £400 million allegedly for transaction charges and returned £2.1 billion to the Central Bank of Nigeria.

As of today, the whereabouts of those funds are unknown. We have initiated lawsuits that have traveled all the way from the lower courts, Appeal Court to the Supreme Court, which upheld last week that the Nigerian government must return our money. Would £2.5 billion not be enough to pay $410 million for ALSCON?

BFIG believes what BPE is torturing us because of that money. At some point, we received intelligence that the money was transferred to CBN and they could not account for it.

Meanwhile, while that money was still hanging, BFIG initiated for another $500 million funding from the U.S. to enable it pay for ALSCON. This was at a time BPE gave us the 58-page SPA to sign in 2013, ostensibly in obedience to the Supreme Court order.

But, we could not take that money, because BPE refused to give BFIG the SPA that could have convinced the banks to part with their money. And those who arranged the funding ended up with a suit against BFIG and claimed $3.2 million for tying down their money. I have documents to show for all these.

What is BPE talking about money to pay for ALSCON? We have incurred more than $32 million in legal fees alone, because we have sued UC RUSAL in Britain, British Virgins Island, United States and Nigeria just to uphold our right to ALSCON.

Besides, the third funding BFIG obtained was from Zenith Bank in Nigeria. It was put together then by the current CBN governor, Godwin Emefiele. Then, Udom Emmanuel, who is the current governor of Akwa Ibom State, was with the bank.

The loan was obtained in January 3, 2013. Immediately the new DG BPE (Dikki) came in and realised BFIG had arranged the facility, he made sure BPE delivered to us a contentious SPA.

What I have to tell Nigerians is that they should not continue to buy the cheap lies BPE is selling that BFIG has no money to pay for ALSCON.

BFIG has not even reached the stage of payment yet. If BPE is telling the truth, how come the Supreme Court Justices could not see this in 2012; six years later the Appeal Court Justices saw this and said we have not even reached the stage of payment?

PT: At a certain point, ALSCON was handed over to UC RUSAL. Have you conducted a technical audit to ascertain the state of what you are buying?

JAJA: This question is sad. After the Supreme Court gave its judgment in 2012, BFIG found out that the KPMG audited financial report on ALSCON (the asset BFIG bided for in 2004 for $410 million) under the management of UC RUSAL, with BPE seating on the Board as the co-manager, was drastically stripped.

At the time BFIG bided for ALSCON, the value was about $1.03 billion. But, after the plant was handed over to UC RUSAL, KPMG said ALSCON was worth less than $89 million. It has gone down further since then.

How would anybody expect BFIG to take $410 million and pay for $89 million asset? If BFIG dares present that to its bankers in the U.S., they will think we are insane. UC RUSAL stripped and damaged the asset. But, BPE will never go there.

Again, production at the plant had dropped to zero by 2013. When Nigerians were managing ALSCON, before privatisation, out of 200 metric tons of aluminium ingots production capacity, they were operating at 32 per cent of installed capacity.

But, when UC RUSAL took over, the highest production capacity they attained was about 10.5 per cent. Clearly, UC RUSAL did not come to revive ALSCON, but to kill it, so that Nigeria will continue to import their own products.

Supreme Court gave a perpetual injunction to BPE to vacate UC RUSAL from the plant. But, till today they are still there in contempt of the Supreme Court order.

So, DG BPE (Alex Okoh) is saying he was not part of the fraud. He is lying. He is the worst DG of the agency to date. He even traveled to the UK and negotiated the handing over of ALSCON to the Russians knowing too well the Supreme Court judgment was till subsisting.

PT: There were reports the former Minister of Mines & Steel and current governor of Ekiti State, Kayode Fayemi, arranged a buy-out deal for you on ALSCON. Why didn’t you accept the offer?

JAJA: While BPE was busy telling the media that BFIG did not have money to pay for ALSCON, Fayemi summoned a meeting for me in his office at the Federal Ministry of Mines & Steel, Abuja. They offered me $35 million to forget about BFIG’s right to ALSCON. They wanted me to sell the Supreme Court judgment to them for $35 million.

When I rejected the offer outright and walked out of the meeting, DG BPE (Okoh) called me to his office and told me, even if I wanted more, he would be ready to assist in negotiating for more.

In the midnight, he kept calling my home. I was so annoyed, because I thought they were inviting me to try to find solutions to the problem.

Somebody they claimed does not have money. They were offering $35 million, with a promise to increase it? And the poor man rejected the money and insisted on getting his plant.

BPE cannot be saying two things at the same time. One, BFIG is poor and cannot pay for ALSCON, and two, money was offered to him and he rejected. It just doesn’t add up at all.