The legal counsel to BFI Group, Barr. Patrick Ikwueto, a Senior Advocate of Nigeria (SAN), has written to the Bureau of Public Enterprises (BPE) asking the privatization agency to immediately and unconditionally comply with the July 6, 2012 judgment of the Supreme Court on the ownership of the multi-million aluminium processing plant.
Ikwueto formally communicated the position of his client on the lingering ALSCON plant crisis to the Director General of BPE, Alex Okoh, on March 27, 2019, querying the Bureau’s introduction of “strange and unilateral terms to the mutually agreed Share Purchase Agreement (SPA) of June 2004.
The BFIG, a consortium of Nigerian-American was declared the winner for the Aluminium Smelter Company of Nigeria (ALSCON) in 2004 following a rigorous bidding process that spanned several months.
A report by Premium Times on Monday in Abuja indicated that the letter titled: “Re: Aluminium Smelter Company of Nigeria Share Purchase Agreement – Compliance with the Court of Appeal Judgment Dated 11th Day of January, 2019” was delivered and the receipt acknowledged by the DG’s office the following day.
In the letter, the BFIG lawyer threatened to commence contempt proceedings against the Director General and BPE for alleged conspiracy to frustrate the enforcement of the July 6, 2012 order of the Supreme Court on the ownership crisis in ALSCON.
The letter reads inter alia: “In view of the nature of this transaction, we are constrained to inform you that unless you take immediate steps to forward the complete SPA (Share Purchase Agreement) with the requisite Annexures as enjoined by the Judgment/Orders of the Supreme Court, we shall take steps to issue necessary Forms 48 and 49 to activate committal proceedings against you and the BPE for continued disobedience of Judgement/Orders of Court.”
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. Where the respondent fails to obey, Form 49 is issued for committal for contempt.
It would be recalled that the National Council on Privatisation (NCP) had declared BFIG winner of the bid for ALSCON with an offer of $410 million in 2004. However, the bid was subsequently cancelled by the privatization agency in controversial circumstances.
Dissatisfied with the BPE’s action, the BFIG challenged the decision in court, an action which took over eight years to determine until the Supreme Court on July 6, 2012 ruled in favour of group and ordered the BPE to enforce BFIG’s right as the winner of the bid.
However, despite the apex court ruling, BFIG’s Chief Executive, Rueben Jaja, claimed that the BPE not only refused to obey the court order, accusing the agency of frustrating his company’s efforts to take over the aluminium company.
Again, on January 11 this year, the Appeal Court, presided over by Justice Abdu Aboki reaffirmed the sanctity of the Supreme Court judgment and again ordered its full enforcement by BPE.
Specifically, the judge directed the privatization agency to “provide the mutual agreed Share Purchase Agreement (Exhibit BPE1) for execution by the parties” in order to “enable BFIG to pay the agreed 10 per cent of $410 million (about $41 million) within 15 working days from the date of the execution of the SPA by the agreement dated May 20, 2004.
The judge ruled that “the balance of 90 percent of the bid price, shall be paid within 90 calendar days as ordered by the Supreme Court.”
Following the latest court ruling, the BFIG wrote on January 14, 2019, through its counsel, drawing the attention of the BPE to the court’s order.
Ikwueto confirmed that on February 4, BPE sent a response to BFIG, accompanied with a 16-page SPA. He, however, claimed that the SPA was not the original approved by the court, as it was not accompanied with any of the 17 annexures, acknowledged as key parts of the SPA.
