ALSCON: Controversy trails order stopping the jailing of BPE chief

ALSCON Plant
ALSCON Plant

Controversy has continued to trail the stay-of-execution order procured by the Bureau for Public Enterprises (BPE) against a previous order by the Federal High Court in Abuja for the imprisonment of its Director-General, Alex Okoh, for disobedience and contempt of the Supreme Court.

On December 17, 2019, Justice Anwuri Chikere of the Federal High Court in Abuja ordered Mr Okoh to be remanded in prison for a minimum of 30 days “until he purges himself of the contemptuous acts disobedience of the orders of the Supreme Court.”

Since July 6, 2012, the apex court had in a unanimous ruling affirmed BFIG as the winner of the bid for the Aluminum Smelter Company of Nigeria (ALSCON).

In 2004, the National Council for Privatisation (NCP) had declared the Nigerin-American firm as the winner and preferred bidder for the plant with an offer of $410 million.

But, BPE unilaterally cancelled the bid in controversial circumstances. BFIG protested and took the matter before the court.

The case dragged till the Supreme Court, which gave the 2012 ruling, including an “order of specific performance” to BPE to rescind its earlier decision to cancel the bid, reinstate BFIG and hand over ALSCON to it.

However, after two orders of the lower court seeking the enforcement of the Supreme Court ruling failed, BFIG on April 4, 2019 commenced contempt proceedings against BPE and Mr Okoh.

On December 17, 2019, Justice Chikere ruled on the application granting BFIG’s request for Mr Okoh and BPE to be remanded in prison for a minimum of 30 days.

BPE’s counter order

In its reaction to the order, BPE, through its spokesperson, Amina Tukur-Othman, announced it had “filed a motion for stay-of-execution and appeal against the judgment of the Federal High Court” against it and Mr Okoh.

Again, on December 24, 2019, Mrs Othman announced that the Court of Appeal, Abuja Division, granted BPE’s application and ordered a stay-of-execution of the committal order against Mr Okoh.

BPE said the appeal, No. CA/A/117/M/2019, at the appeal court was pending before a panel of three Justices, namely S. J. Adah, Justice R. M. Abdulahi and Justice M. B. Idris.

In granting the application, BPE spokesperson said the appeal court directed that the stay-of-execution order would remain pending hearing and determination of the motion on notice fixed for January 20, 2020.

Confusion

But, at the resumed sitting of the appeal court on January 20, counsel to BPE, Mustapha Abdu, was unable to produce a copy of the judgment by Justice Chikere on which the stay of execution order was based.

A PREMIUM TIMES reporter was present in court to observe the proceedings of the court.

Mr Abdu, who announced appearance for BPE, said he had filed necessary applications.

However, when the justices reviewed the documents before them by counsel to BPE, they were surprised that copies of Justice Chikere’s judgment, which the privatisation agency’s application for a stay-of-execution sought to counter, was not among the collection of documents.

When Mr Abdu insisted he had filed the copy of the judgment, the judges demanded he produces his copy as proof he had the document.

Unable to produce the document, the justices were compelled to adjourn further hearing in the case till February 25 to enable parties gather all the relevant documents and file their processes.

Implications

Meanwhile, the counsel to BFIG and lawyer from Patrick Ikwueto law firm spoke with PREMIUM TIMES ar the Court of Appeal premises shortly after the court sitting on the implication of what happened in court.

He said the inability of Mr Abdu to produce the copy of Justice Chikere’s judgment, when the judges asked him, was a confirmation that BPE did not have the document.

“In law, one cannot appeal or be granted a stay-of-execution of the order of another court without seeing a copy of the judgment of order one wants set aside.

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“The actual written judgment delivered by Justice Chikere was not released until late Friday, January 17, 2020. So, on what did BPE base its application for the stay-of-execution order it claimed to have procured since December 24, 2019?

“Again, how come the justices were not aware of the judgment they were supposed to have relied on to grant BPE’s application and had to demand several times for its counsel to produce it in court?” the lawyer said.

Order a ‘sham’- BFIG

On Thursday, PREMIUM TIMES obtained a copy of a petition by BFIG to the Chief Registrar of the Federal High Court, Abuja, against the stay-of-execution order procured by BPE.

In the petition, the Executive Vice President of BFIG, Jimmie Williams, faulted the order and demanded the immediate enforcement of the order by Justice Chikere for the arrest and imprisonment of the BPE DG, Alex Okoh.

Mr Williams, who is also BFIG’s General Counsel, had sent the petition dated January 21, 2020, a day after the appeal court sat to consider the application purportedly filed by BPE to counter the order to remand its DG in prison for contempt and disobedience.

The petition was titled “RE: Mr. Alex Okoh and The BPE’s Sham Stay of Execution Case No. FHC/ABJ/CS/583/2004.”

Mr Williams argued that since Justice Chikere orally granted BFIG’s Noticed Motion on December 17, 2019, for Mr Okoh‘s committal to prison, the actual written judgment was not released until January 17, 2020.

He said BPE has never served BFIG with any application for a stay-of-execution with a certified order granting same.

“On January 20, we (BFIG) appeared before the Court of Appeal, and was astonished to learn that no such stay-of-execution had been granted. The very court that was supposed to have issued the order, exposed the sham by asking the BPE to provide the court with a copy, and the BPE had nothing to produce.

“Consequentially, this means that there is no impediment on this Court, its servants, law enforcement agents and its persons, from attempting to enforce and enforcing the arrest or imprisonment of Mr Alex Okoh, pursuant to Justice Chikere’s ruling/committal order. Accordingly, we respectfully request the immediate execution of this order forthwith,” BFIG counsel said in the petition.

‘BFIG’s comment contemptuous’- BPE

On Friday, PREMIUM TIMES contacted BPE’s lawyer, Mr Abdu for his reaction to BFIG’s petition describing the stay-of execution order by his client a sham.

“It’s blatant falsehood. It shows the desperation on the part of BFIG. It’s obvious that they are more interested in getting the man (BPE DG) into jail,” Mr Abdu said in a telephone interview.

He said when the matter came up last December, BPE informed the court about its inability to procure the ruling or judgment of the lower court, “because the court had closed.”

“We requested the court to stay the execution of the order of the lower court. The court agreed and gave us the last adjourned date (January 20).

“When we were there, at that time we were able to procure the judgment. We compiled and transmitted records to the Court of Appeal, since the lower court no longer have jurisdiction. We informed the Court of Appeal.

“But, the court said rather than dissipate energy on motion on notice or exparte, the two parties should endeavor to file their briefs before the next adjourned date (February 25) so that the briefs proper can be heard. That is the position.

“So, for anybody to say the stay-of-execution order granted by the Court of Appeal is a sham is irresponsible and a contempt of court,” Mr Abdu said.

Asked why he was unable to produce the judgment of the lower court he said he procured on behalf of BPE when the appeal court Justices demanded from him on January 20, Mr Abdu blamed it on a mix up by the administrative arm of the court.

“We provided the document (judgment of the lower court). It was with the administrative arm. After the court session, I approached the Registrar of the Court to know why the document was NOT presented, he accepted they were at fault, because they did not take it upstairs to the court along with the other documents,” he said.


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