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By Ezekiel Koseti
In the words of the Chinese philosopher, Laoze: “Take care of what is difficult while it is still easy and deal with what will become big while it is yet small.” It seems this admonition has been lost on BFI Group (BFI Group or BFIG) after it got the nod of the Supreme Court of Nigeria on July 6, 2012, to consummate the core investor share purchase agreement dated May 20, 2004, with the Bureau of Public Enterprises (BPE) in respect of Aluminum Smelter Company of Nigeria (ALSCON).
In its ruling, the apex court had posited inter alia: “An order of specific performance is hereby decreed mandating the defendant/respondent (BPE) to provide the mutually agreed share purchase agreement for execution by the parties to enable the plaintiff/appellant (BFI Group) pay the agreed 10% of the accepted bid price of US$410 million (i.e. the sum of US$41 million) within 15 working days from the date of execution of the share purchase agreement in accordance with the agreement dated 20/5/2004 and 90% of bid price shall be paid within 90 calendar days.”
In addition, the Supreme Court had ordered BPE to “… accept payment of the 10% of the bid price from the appellant within 15 days from the date of signing the share purchase agreement (SPA) by the parties”.
To any discerning objective bystander, what should be of paramount importance is whether the orders handed down by the Supreme Court were subsequently complied with by the (feuding) parties in the transaction. Information available in the public domain indicates that the BPE took steps to actualise the core investor sale of ALSCON to BFI Group in strict compliance with the foretasted ruling of the Supreme Court. However, what is becoming clear is that BFI Group appears to desire more than was contained in the July 2012 ruling of the apex court.
Following the Supreme Court judgement, BFIG had reportedly insisted that some documents (not contained or referenced in the 2004 agreement or the ruling of the court) be made part of the (2004) SPA. The BPE had viewed such as tantamount to a deviation from the subsisting order of the Supreme Court. After the lapse of the time specified for the execution of the agreement and BFIG’s non-acceptance of the SPA (this was communicated by BFIG in an email of February 2, 2013) the transaction was cancelled.
That ordinarily should have laid to rest the legal tango between the parties on the aborted core investor sale of ALSCON. However, BFIG approached the courts once more, with its purported claims. In suit No. FHC/ABJ/CS/901/2013, the Federal High Court, as presided over by Hon. Justice Abdu-Kafarati, had, on September 30, 2014, decided the matter in favour of BFIG. But in January 2019, the Court of Appeal set aside the judgment of the lower court and held that the Federal High Court exceeded its jurisdiction by giving orders (in favour of BFIG) that would be tantamount to amending and adjusting the earlier decisions of the Supreme Court. The Court of Appeal also reiterated the need for the parties to execute the SPA dated 20/5/2004 as contained in the ruling of the Supreme Court.
Investigations showed that, although the SPA was subsequently signed by the parties, BFIG once again resurrected its request for the inclusion of annexures, which were not part of the original transaction, and thus this request was inconsistent with the Supreme Court judgement. Thereafter and contrary to the said Supreme Court judgement, BFIG failed to make payment of the agreed 10% and the transaction was terminated.
Dissatisfied with this outcome, BFIG initiated contempt proceedings against the BPE and its director-general, Mr. Alex A. Okoh, ostensibly for their refusal to give effect to the decision of the Supreme Court of July 6, 2012, and that of the Court of Appeal of January 11, 2019.
However, after reviewing the facts of this protracted matter, it seems that this very accusation could well be levelled against the accuser (BFI Group), which has consistently attempted to contravene the decision of the Supreme Court by seeking the inclusion of terms and conditions alien to the mutually agreed SPA between BPE and BFI Group in May 2004.
The pertinent question to be answered on this issue is simple: “Was the DG BPE, Mr. Alex A. Okoh, in violation of the order of the Apex Court of July 6, 2012, and that of the Court of Appeal of January 11, 2019?” Those judgements required Mr. Okoh to do two things: (1) Provide to BFI Group the mutually agreed SPA dated May 20, 2004, for execution by the parties (that is BPE and BFI Group); and (2) To accept payment of 10% of the bid price, being the sum of $41m, within 15 working days from the date of execution of the SPA. It is on record that the mutually agreed SPA was forwarded to BFIG by BPE. It is also on record that the mutually agreed SPA was executed by both parties. Furthermore, it is not in dispute that, notwithstanding receiving and executing the SPA, BFI Group did not pay the agreed 10% of the bid price to BPE. This prompts another simple question, albeit a rhetorical one: in light of the foregoing, which party is actually in contempt for breaching the terms of the Supreme Court judgement?
Also, as can be gleaned from the court processes in the appeal on the contempt proceedings, it is doubtful if the strict procedure of personal service of Forms 48 and 49 on the alleged contemnor (Mr. Alex A. Okoh) was effected. The justice of the matter cannot be dichotomised from the technicalities of law in the circumstance.
In proceedings of contempt ex-facie curiae, as in the instant situation, the settled position of law is that as committal proceedings touch on deprivation of freedom and liberty of an individual the service and procedure are applied strictly and any departure from the strict application vitiates the proceedings. Curiously, the Federal High Court, in determining the committal proceedings to be competent, seemed to dismiss the failure to serve the alleged contemnor as a technicality: “To expect a service of the Court process directly on him (Mr. Okoh) when he occupies an office is, with respect to the learned SAN, technically taken too far.” It is surprising and even frightening that a court of justice would treat the liberty of a citizen so casually.
As the committal decision of the Federal High Court as upheld by the Court of Appeal moves to the Supreme Court for a final decision, what becomes sadly apparent is that regardless of the outcome, there will be no victors in the true sense, only the vanquished. The words of the Chinese philosopher, Laoze, come to mind once more. BFIG has, over a period of almost 20 years, allowed an easy thing to become difficult and a small thing to become big. If it was genuinely interested in ALSCON, why did it not simply pay the purchase price? That decision or lack thereof, has not simply cost BFI Group a long-sought-after asset, it has come at a cost to the nation, given that, because of these protracted and unnecessary legal tussles, we have been deprived of the significant economic benefits that could have been realised from this prized asset.
•Koseti, a public affairs analyst, writes from Lagos
