News - Special Focus - January 22, 2022

ALSCON crisis: BPE reacts to Appeal Court’s affirmative ruling to comply with Supreme Court order

BPE DG dares court; says he will not be intimidated into obeying the Supreme Court order

By Bassey Udo

Friday’s ruling of the Appeal Court in Abuja giving the Bureau of Public Enterprises (BPE) 30 days to comply with the order of the Supreme Court over the ownership of the Aluminium Smelter Company of Nigeria (ALSCON) is part of a grand scheme by BFIGroup to possess government asset through inordinate avenue, the Direcror General of BPE, Alex Okoh, has said.

Consequently, Okoh has dared the court, vowing “not to be intimidated into doing the wrong thing.”

The BPE DG was reacting to last Friday’s ruling of the Appeal Court in Abuja, which affirmed the order of the Federal High Court, Abuja in 2019 for his arrest and imprisonment for contempt and disobedience of the apex court’s order of July 6, 2012 over the ownership of ALSCON.

In a unanimous ruling, Justices Stephen Adah, A. Mustapha and Kenneth Amadi affirmed the December 17, 2019 order by Justice Anwuri Chikere of the Federal High Court in Abuja against Okoh and BPE.

Ruling on the application filed by BFIGroup, the Nigerian-American consortium declared winner of the bid for ALSCON in 2004, Justice Chikere ordered that Okoh be remanded in prison custody for a minimum of 30 days “until he purges himself of the contemptuous acts of disobedience of the orders of the Supreme Court.”

On Friday, after hearing the appeal by BPE against Justice Chikere’s judgment, the Appeal Court in a unanimous judgment upheld in its entirety the order of the lower Court on the matter.

BPE DG reacts
But reacting to the latest ruling of the Appeal Court, Okoh said rather than him and BPE being sent to jail, BFIGroup and its promoters should.

“The judgment of the Supreme Court was very clear. We (BPE) gave them (BFIgroup) the SPA (share purchase agreement) as per the Supreme Court ruling. They signed it, thereby accepting the terms, but did not make the payment of 10% ($41m) as stated by the Supreme Court.

“They even misled the CBN (Central Bank of Nigeria) into believing that a payment was made which was never received. This is a grand scheme to possess an asset of the government through inordinate avenue.

“Why can’t they just pay the money and take the asset. This should be very simple. Pay and take the asset if there are no other sinister or ignoble motives. This is quite unfortunate,” Okoh said in a WhatsApp message to MEDIATRACNET on Friday.

Insisting on his innocence in handling the transaction, Okoh said:”I will continue to discharge my duties to the government and my nation with all sense of duty and integrity.

“I was appointed in April 2017 and was not even in office when the transaction was done. And so I have no interest whatsoever than to be true to my conscience and protect the interest of the Federal Republic of Nigeria faithfully,” he added.

Okoh said since the Supreme Court ruling was very specific on payment of $410million bid price, the real contempt would have been to do otherwise and give BFIGroup an SPA for $250 million. I will not be intimidated into doing the wrong thing,” he said.

BFIGroup insists BPE, Okoh should be in jail
Regardless, BFIGroup in its official statement hailing the judgment said the latest order was the sixth by the court condemning Okoh for his poor handling of the ALSCON transaction.

BFIGroup’s General Counsel, Jimmie Williams, Esq recalled when Okoh was first held in contempt in December 2019, and said the apex court had declared that its decisions must be treated as sacrosanct.

“When one openly defies the judgment of the highest court in the land, by failing to handover ALSCON to BFIGroup, and continues to flaunt the rule of law, he should be made to pay this unfortunate price of imprisonment.

“While we take no pleasure in seeing someone go to prison, they must understand that we will use every measure available to ensure that ALSCON is rightfully transferred to BFIGroup without delay,” Williams said.

Backgound to crisis
The BFIGroup General Counsel traced the ALSCON crisis to 2004 when BPE refused to hand over ALSCON to BFIGroup following the public bidding process over alleged inability to pay the initial $41million bid price.

He said following BFIGroup’s lawsuit against BPE, the Supreme Court on July 6, 2012, issued a judgment in case No. SC. 12/2008, titled: “BFI Group Corporation v. Bureau of Public Enterprises.

The apex Court, he said, did not only dismiss BPE’s claim that BFIGroup did not pay for ALSCON, it also granted all of BFIGroup’s claims, including that BFIGroup had a binding contract with the Nigerian government for the purchase of ALSCON.

The Court issued “an order of perpetual injunction . . . restraining BPE and its agents from inviting any further bidding for the sale and acquisition of ALSCON in violation of the contract between BFIGroup and BPE.

Also, court stopped BPE from negotiating to sell, selling, transferring or otherwise handing over ALSCON to any person or persons in violation of the contract between BFIGroup and BPE.

After months of negotiating, BFIGroup on February 13, 2013, presented BPE with a fully signed SPA for the purchase of ALSCON, which BPE refused to countersign.

BFIGroup, he said, later filed an enforcement action in the Federal High Court of Abuja, but BPE argued that it did not timely present its payment for ALSCON.

On September 30, 2014, the Federal High Court presided by then Justice Abdukadir Abdu-Kafarati dismissed BPE’s payment argument, and ordered BPE to fully enforce the Judgment of the Supreme Court and execute forthwith the February 13, 2013 mutually agreed Share Purchase Agreement.

The Court further compelled and mandated BPE to take full control and possession of ALSCON from anybody, including UC Rusal, and prepare same for handover/transfer to BFIGroup.

On October 20, 2014, Williams said UC Rusal filed a separate action in the Federal High Court, Uyo asking the Court to intervene and restrain BPE from carrying out the Orders of the Supreme Court and the Federal High Court of Abuja.

UC Rusal joined BPE in the suit, and again, asked it not to hand over ALSCON to BFIGroup, because it had not made its timely payment.

On November 10, 2016, Justice Ijeoma L. Ojukwu of the High Court dismissed BPE’s claim and held that the judgment of the Supreme Court was clear and unequivocal and leaves no room for speculation.

The Court further noted that UC Rusal’s questioning of the Supreme Court decision was “unimaginable” and that its’ efforts to continue to upend the decision made it nothing more than a “busy body”.

On 23 October 2014, the BPE appealed the decision of the Federal High Court.

But on 25 June 2015, UC Rusal filed an application with the Court, asking to be heard in the appeal as an interested party.

On 11 January 2019, the Court of Appeal in Abuja dismissed BPE’s lack of payment argument, when it reaffirmed BFIGroup’s ownership rights to ALSCON and ordered the Federal Government and BPE to send BFIGroup the mutually agreed Share Purchase Agreement forthwith.

On April 2, 2019, BFIGroup initiated contempt proceedings against Okoh and BPE in the Federal High Court, Abuja.

On 17 December 2019, Justice Anwuri Chikere of the Federal High Court, Abuja held BPE’s DG, in criminal contempt of court and ordered he be sent to prison for a minimum of 30 days for continuing to refuse to obey the judgment of the Supreme Court and transfer ALSCON to BFIGroup.

Responding to the latest ruling, the BPE proclaimed it has “at all times complied with all judgments in respect of ALSCON.

BPE accused BFIG of serially defaulting in meeting its financial commitments as directed by the courts to pay the bid price of $410 million as submitted by BFIG in 2004.”

Although ALSCON, prior to the bid in 2004, was valued by its auditors to be worth nearly $1billion.

However, in 2012, ALSCON, under the management of UC Rusal, was valued at $89 million.

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