Olusola Bello
The Court of Appeal sitting in Abuja on January 20, 2022, upheld the judgment rendered by Justice Anwuri Chikere of the Federal High Court of Nigeria for the arrest and imprisonment of BPE’s Director-General (DG) Alex Okoh.
In a unanimous ruling, Justices Stephen Adah, A. Mustapha and Kenneth Amadi affirmed that Director Okoh has been in criminal contempt of court for continuing to refuse to obey the judgment of the Supreme Court of Nigeria and transfer ALSCON to BFIGroup. Thus, he must be remanded to prison for a minimum of thirty (30) days “until he purges himself of the contemptuous acts of disobedience of the orders of the Supreme Court.
According to a press statement issued by BFIGroup’s General Counsel, Jimmie L. Williams, Esq., this is now the SIXTH COURT that has chastised the DG of the BPE regarding their handling of ALSCON. And, the old saying that “the bark is worse than the bite” now has new consequences for the DG, as he must feel the teeth of imprisonment brought on solely through his serially flaunting of the rule of law and continuous disobedience of the lawful and subsisting orders of the courts.
“ As BFIGroup’s General Counsel, I would like to repeat the statement made when Director Okoh was first held in contempt in December 2019, “the decisions of Nigeria’s Supreme Court must be treated as sacrosanct. When one openly defies the judgment of the highest court in the land, fails to hand over ALSCON to BFIGroup, and continues to flaunt the rule of law, he should be made to pay this unfortunate price. 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.”
Background to the 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.
