NIPPs Privatisation: BPE, Ethiope's Out-Of-Court Settlement Suffers Setback
You Canâ€™t Stop Completed Process, NDPHCâ€Ž Insists
SAN FRANCISCO, April 30, (THEWILL) â€' The attempt by the Bureau of Public Enterprises (BPE) to resolve its differences with Ethiope Energy Limited over the latterâ€™s interest in three National Integrated Power Plants (NIPPs) power stations out of court may have suffered a major setback.
Indications to this emerged on Wednesday as Justice Abdul Kafarati of the Federal High Court Abuja was told by the lawyer to Ethiope Energy Limited, Bello Abu, that his client had been unable to reach an amicable settlement with BPE over the issues in dispute.
The matter was earlier adjourned to Wednesday for report on the settlement but with the inability of the two parties to settle, the counsel to Ethiope asked the court for a date to set the suit down for hearing and dispose all pending applications.
The inability of the two parties to resolve their differences was also confirmed by Professor Taiwo Osipitan, (SAN) who represented BPE and the National Council on Privatisation (NCP).
Explaining that the court's processes were served on a youth corps member and not the Director General, Osipitan therefore asked for a short date to enable him argue his application seeking to set aside the service of process on his clients and to discharge the interim order issued by the court against his clients.
Trouble started when BPE commenced the bid process for Alaoji, Omoku and Gbarain power stations on March 7, 2014.
However, Ethiope Energy, which claimed it also submitted bids for the power stations, said it was excluded from the process.
Not satisfied with its exclusion, Ethiope approached the court for an order to stop the BPE from going ahead with the bid process.
In the statement of claim filed through Izinyon Ethiope accused the Chairman of Due Diligence Committee, Mr. Atedo Peterside, of having an enormous influence on the BPE. The company said Peterside had been having a running battle with its Chairman, Chief Johnson Arumeni, was hostile and has animosity for him.
Ethiope accused the BPE of bias, prejudice, conflict of interest, manipulation of the technical bid evaluation, due diligence exercise and that Peterside should have excused himself completely in the whole evaluation as it related to the plaintiff owing to the animosity and litigation he had instituted against its chairman.
Other defendants in the suit are the Niger Delta Power Holding Company Limited (NDPHC) and the Attorney-General of the Federation.
Counsel to the Niger Delta Power Holding Company Limited, Mr. Mathew Echo, also confirmed the collapse of the talks as he told the court that he had filed a preliminary objection and application for stay of execution of the interim order.
He also asked for a date to enable him argue the objection and the application.
The court on March 17 at the instance of Ethiope Energy , had stopped the BPE from going ahead with the bid process for three NIPP power stations at Alaoji, Omoku and Gbarain, currently being privatised.
But after the order was granted, the parties expressed their interest to settle the matter out-of-court.
The hope of the settlement was however dashed as confirmed by the parties at the court on Wednesday.
This came as the second defendant, Niger Delta Power Holding Company (NDPHC), filed an appeal at the Court of Appeal in Abuja seeking to set asideâ€Ž the interim order issued on March 17th which stopped BPE from going ahead with the privatisation of the three power stations in dispute.
In a notice of appeal filed by its counsel, Dr. Fabian Ajogwu (SAN), the company said Justice Kafarati erred in law when he granted the interim order.
NDPHC maintained that Justice Kafarati overreacted when he granted the relief sought in the main suit at an interim stage especially when he was yet to hear from the respondents.
The company also accused the judge of denying it fair hearing when he failed to consider the oral submissions made by its counsel before granting the interim order.
NDPHC therefore asked the Appellate Court to set aside the interim order, saying the order amounted to an effort in futility because the event which they sought to stop had been completed.
'The law is firmly established that the courts do not make or grant an injunctive or restraining order to stop an event that has happened or completed,' he argued.
Justice Kafarati, had in a short ruling for an order of injunction,on March 17, said: â€œIt is apparent that the defendants have been served with the motion on notice and they failed to brief their counsel.â€
He added ruled that â€œAn order of interim injunction is hereby granted against the 1st defendant from further going on with the bid process for the power stations.â€