The Morality Of Our Judicial System Reigns Supreme – Court Of Appeal Upholds Judgment And Confirms The BPE DG Is Still In Criminal Contempt Over ALSCON
Abuja, Nigeria:
1) It was the late Reverend Martin Luther King, Jr. who declared that “ONE HAS NOT ONLY
A LEGAL, BUT A MORAL RESPONSIBILITY TO OBEY JUST LAWS.”
2) When writing his April 16, 1963 letter from a jail in Birmingham, Alabama, USA, the Reverend Dr. King noted that laws which square with a moral code, or the law of God, are just and must be obeyed. It is one that uplifts all of society, and we are better off when is applied fairly and equally.
3) Nothing embodies these principles more than the decision that was just announced by our Court of Appeal. On January 20, 2022, the Court of Appeal in Abuja 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, 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.
4) 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.
5) 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 handover 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 legally available to ensure that ALSCON is rightfully transferred to BFIGroup without delay.”
Background to the ALSCON Crisis
6) In 2004, the BPE refused to hand over ALSCON to BFIGroup following the public bidding process and proclaimed that it’s reason for doing so was BFIGroup’s inability to pay the initial bid price. However, on July 6, 2012, following BFIGroup’s lawsuit against the BPE for its’ actions, the Supreme Court of Nigeria clearly, concisely and definitively issued a judgment in the case entitled BFI Group Corporation v. Bureau of Public Enterprises, Case No. SC. 12/2008, wherein the Court granted all of BFIGroups’ claims, and held that BFIGroup had a binding contract with the Nigerian government for the purchase of ALSCON. The apex Court dismissed the BPE’s claim that BFIGroup had not timely paid for ALSCON and issued “an order of perpetual injunction . . . restraining [the BPE], its servants, agent privies, management or howsoever called from inviting any further bidding for the sale and acquisition of ALSCON in violation of the contract between the Plaintiff (BFIGroup) and the Defendant (BPE) and from negotiating to sell, selling, transferring or otherwise handing over ALSCON to any person or persons in violation of the contract between the Plaintiff and the Defendant.”7) Following this decision, after months of negotiating, on February 13, 2013, BFIGroup presented the BPE with a fully signed SPA for the purchase of ALSCON. Regrettably, the BPE refused to countersign the agreement. Thus, BFIGroup filed an enforcement action in the Federal High Court of Abuja. Once again, during this proceeding, the BPE argued that BFIGroup did not timely present its payment for ALSCON.
8) Then, a SECOND COURT dismissed the BPE’s payment argument, and on September 30, 2014, Judge Abdukadir Abdu-Kafarati (the late Justice Abdu-Kafarati, the Chief Judge of the Federal High Court) Ordered the BPE to “fully enforce and give effect to the meaning and intendment of the Judgment of the Supreme Court dated 6th July 2012 by signing and executing forthwith the [February 13, 2013] mutually agreed Share Purchase Agreement.” The Court further compelled and mandated that the BPE “forthwith take full control and possession of ALSCON from anybody including UC Rusal et al. and prepare same for handover/transfer to [BFIGroup].”
9) On October 20, 2014, UC Rusal proceeded to file a separate action in the Federal High Court of Uyo asking the Court to intervene and restrain the BPE from carrying out the Orders of the Supreme Court and the Federal High Court of Abuja. The BPE was joined in this suit, and again, proclaimed that it should not 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 became the THIRD COURT that dismissed the BPE’s claim and held that “From where I sit/stand, the above judgment of the Supreme Court is 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”.
10) On 23 October 2014, the BPE appealed the decision of the Federal High Court. Similarly, on 25 June 2015, UC Rusal filed an application with the Court, asking to be heard in the appeal as an interested party.
11) On 11 January 2019, the Court of Appeal in Abuja became the FOURTH COURT that dismissed the BPE’s lack of payment argument, when it reaffirmed BFIGroup’s ownership rights to ALSCON and ordered the FG and the BPE to send BFIGroup the mutually agreed Share Purchase Agreement forthwith.
12) After being informed that one of the bases for the appeal was the BPE’s argument against BFIGroup’s right to enforce the 6 July 2012 landmark decision of the Supreme Court of Nigeria in BFIGroup’s favor, due to BFIGroup’s alleged failure to make its payment for ALSCON, the Appeal Court found it curious why Senior Advocates of Nigeria would question the enforceability of a decision from the apex court of the country. In its’ ruling, the Court directly noted
“It is rather surprising or curious with due respect that the parties went into laborious and unnecessary arguments on the issue of subject matter jurisdiction of the court below. It must be noted here that the claim of the parties had run its full course in the court. The decision of the apex court is final. No court again is competent to entertain any argument on any respect of the claim, other than to enforce the judgment of the Supreme Court.”
13) Instead of complying with this latest decision, the Director General of the BPE, Mr. Okoh, allowed press reports to surface using his name to tout UC Rusal as the company to restart production at ALSCON. This failure to acknowledge BFIGroup as the Preferred Core Investor of ALSCON was a blatant disregard of the rule of law and could not be allowed to stand.
14) Accordingly, on April 2, 2019, BFIGroup initiated contempt proceedings against Mr. Okoh and the BPE in the Federal High Court.
15) On 17 December 2019, Justice Anwuri Chikere of the Federal High Court of Nigeria held the BPE’s DG, in criminal contempt of court and ordered that Mr. Okoh be sent to prison for a minimum of thirty (30) days for continuing to refuse to obey the judgment of the Supreme Court of Nigeria and transfer ALSCON to BFIGroup. Justice Chikere was the FIFTH COURT to find the BPE acting above the rule of law.
16) In response to this latest ruling, the BPE proclaimed that it has “at all times complied with all judgments in respect of ALSCON. However, BFIG has serially defaulted in meeting its financial commitments as directed by the courts to pay the bid price of USD $410 million as submitted by BFIG in 2004.” The BPE has also frustrated every meeting convened by the Office of Minister of Justice and Attorney General of the Federation to comply with the Supreme Court decision. Once again, this proclamation and these acts have been soundly rejected by a unanimous Court of Appeal.
17) SIX SEPARATE COURTS have now dismissed the BPE’s arguments, and, yet they continue to make them. One must ask yourself, why? Why continuously lie about BFIGroup’s failure to make any payment?
18) Is it because, at the time ALSCON was put up for bidding in 2004, it was valued by ALSCON’s own auditors to be worth nearly $1 Billion USD, but in 2012, while under the continuous management of UC Rusal, it was valued at $89 Million USD? A devaluation confirmed by ALSCON’s own auditors and done during the time that the BPE served on ALSCON’s board of directors.
19) Can the BPE explain why this devaluation of ALSCON has taken place? Can the BPE explain why they believe this national asset has been put to “optimal use” when the number of employees working at ALSCON in 2004 was nearly 800, and now less than 30 remain? Is it a coincidence that the BPE’s continued disobedience of the Nation’s court orders begins after BFIGroup learns of this devaluation in 2012?
20) We close with the insightful words of Justice Fabiyi in 2012, when he ruled that BFIGroup has not defaulted on any payment obligation and held that BFIGroup was ALSCON’s rightful owner:
“I wish to reiterate that fact that state officials should learn to operate within the rule of law. The world has become a global village and all forms of negative tendencies must be avoided. Senior officials should operate with firmness of purpose. This must be so if we desire to be taken seriously in international trade relations.”
21) BFIGroup looks forward to the work ahead to help Nigeria expand and diversify its’ economy, reduce the scourge of gas flaring and provide employment to a large number of its citizenry.