The Bureau of Public Enterprises (BPE) on Tuesday said it has filed a motion for stay of execution and appeal against the judgment of the Federal High Court against it and its Director-General, Alex Okoh.
Justice Anwuri Chikere accused Mr Okoh of serial disobedience of the Supreme Court order on the ownership controversy of the Aluminium Smelter Company of Nigeria (ALSCON). The judge ordered he be jailed for the serial disobedience.
The decision to jail the DG BPE followed a committal proceeding instituted against him and the BPE for failure to fully execute the judgment of the Supreme Court and Court of Appeal in the matter filed by BFIG against BPE over the latter’s decision to unilaterally cancel the outcome of the 2004 bid.
In its reaction to the committal order, the bureau said “at all times, it complied with all judgments in respect of ALSCON.”
The BPE spokesperson, Amina Tukur-Othman, said “BFIG has serially defaulted in meeting its financial commitments as directed by the courts to pay the bid price of $410 million as submitted by BFIG in 2004.”
Ms Tukur-Othman reiterated the federal government’s commitment to economic development through privatisation and “putting of its assets to optimal use through the course of fairness and due process”.
The National Council on Privatisation (NCP) had declared BFIGroup Corporation the winner of the bid for ALSCON in 2004. But, the bid was cancelled by BPE in controversial circumstances.
BFIG launched a legal battle to reclaim ALSCON from BPE.
Eight years later, the Supreme Court on July 6, 2012, ruled in favour of BFIG and ordered BPE to acknowledge it as the rightful owner of ALSCON.
Despite the order, BFIG’s Chief Executive, Rueben Jaja, said BPE not only refused to obey, but continued to frustrate his company’s efforts to takeover ALSCON.
Again on January 11, 2019, the Appeal Court delivered judgment in Suit No. FHC/ABJ/CS/901/2013 and Court of Appeal No. CA//637/2014 between BPE and BFIG.
In the judgment, Justice Abdu Aboki reaffirmed the sanctity of the Supreme Court judgment and again ordered BPE to carry out a full enforcement.
Specifically, the judge directed BPE to “provide the mutual agreed Share Purchase Agreement (SPA) (Exhibit BPE1) for execution by the parties.”
The agreement, Justice Aboki said, would “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 Share Purchase Agreement by the agreement dated May 20, 2004.”
“The balance of 90 per cent of the bid price, shall be paid within 90 calendar days as ordered by the Supreme Court,” he added.
The judge said the ruling also sets aside the judgment in Suit No FHC/ABJ/CS/901/2013 of September 30, 2014, delivered by Justice Ashada Abdu-Kafarati of the Federal High Court, Abuja.
In the 2014 judgment, the judge had ordered BPE to accept 10 per cent of the purchase price, or $41 million, to be paid within 15 working days of the enforcement order, or not later than October 24, 2014.
Also, the judgment directed the balance of $369 million be paid as per the audited financial statement by KPMG as at the date of the judgment.
Disobeying court orders
Following the ruling, BFIG, through its legal counsel, Patrick Ikwueto, wrote to the BPE on January 14, 2019, to draw its attention to the consequential orders of the Appeal Court.
On February 4, BPE sent a response to BFIG, accompanied with a 16-page Share Purchase Agreement (SPA).
Mr Ikwueto said 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.
He said the SPA ordered by the Supreme Court was accompanied with annexures classified by Section 19.1 including 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.
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.
On February 27, 2019, Mr Ikwueto said BFIG 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 judgement on July 6, 2012.
On March 4, BFIG said BPE executed the SPA, “but removed ALL of the annexures, returned an incomplete document to BFIG”.
On March 5, 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.
Back to court
In April this year, BFIG initiated contempt proceedings against the BPE and Mr Okoh, over their alleged continued defiance of the 2012 Supreme Court order on the ownership of ALSCON.
On March 27, 2019, counsel to BFIG again wrote to Mr Okoh to frown at “BPE’s introduction of strange and unilateral terms to the mutually agreed share purchase agreement (SPA) of June 2004” approved by the Supreme Court in its July 6, 2012 judgment.
Mr Ikwueto demanded the ‘immediate and unconditional’ compliance with the judgment as affirmed in the January 11, 2019 ruling of the Court of Appeal.
Mr Ikwueto threatened to commence contempt proceedings against Mr Okoh and BPE by issuing Forms 48 and 49 from the Federal High Court.
Mr Ikwueto accused Mr Okoh and BPE of “conspiracy to frustrate the enforcement of the July 6, 2012 order of the Supreme Court on the ownership crisis in ALSCON”.
Later, BFIG served Mr Okoh the notice of the commencement of contempt proceedings, popularly called Form 48, from the Federal High Court, Abuja.
Under the Civil Process Act, Cap. 551, Laws of the Federal Capital Territory (FCT) and the Judgment Enforcement Rules, Form 48 usually contains a copy of the court order served on the respondent for mandatory compliance within 24 hours.
Where the respondent fails to comply, the court usually follows with the issuance of Form 49 for committal of the offender to prison for contempt.
Mr Ikwueto said the implication of the latest ruling is that “the DG of BPE will be remanded in prison for 30 days until he purges himself of disobedience and complies with the Supreme Court order.”
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