» » Supreme Court chides BPE for refusing to comply with judgment on ALSCON‬


Supreme Court chides BPE for refusing to comply with judgment on ALSCON‬

Author: john on 29-11-2013, 08:06, views: 2 303


The BFIG wants an enforcement of a Supreme Court ruling on ALSCON.


The Supreme Court on Tuesday chided the Bureau for Public Enterprises, BPE, for refusing to comply with its July 6, 2012 ruling ordering the revocation of the sale of the Aluminium Smelter Company of Nigeria, ALSCON, Ikot Abasi to UC RUSAL, the Russian firm that took over the plant in controversial circumstances in 2006.‬


‪The Nigerian-American consortium, BFIGroup, was declared the winner of the bid for the plant by the National Council on Privatisation, NCP, in 2004, but was disqualified and the bid cancelled by BPE.‬


‪Following the controversial disqualification by BPE, BFIG went to court seeking the revocation of the decision to transfer the ownership of ALSCON to RUSAL and its reinstatement as the authentic bid winner.‬


‪After eight years of legal tussle, the Supreme Court, in a ruling on July 6, 2012, unanimously ordered specific performance mandating BPE to provide a mutually agreed share purchase agreement, SPA, for BFIG to pay the agreed 10 per cent of the accepted bid price of $410 million within 15 working days from the date of its execution in accordance with agreement of May 20, 2004. ‬

After more than a year of BPE’s non-compliance with the ruling, BFIG returned to the Supreme Court to seek the enforcement of its order.‬

‪At the hearing on the motion on Tuesday, BFIG’s lead counsel, Olabode Olanipekun, said his client was back in court to seek an order directing BPE to fully enforce and give effect to the meaning and intent of the judgment of July 6, 2012 by executing the mutually agreed SPA.‬


‪”If the court has given anticipatory judgment in its appellate jurisdiction, then we believe it is the best place to go back to seek the full enforcement of that judgment,” Mr. Olanipekun said, urging the court to consider its application expeditiously, in view of the fast deteriorating state of the plant under the Russian management.‬


‪However, the presiding Justice, Walter Nkanu Onnoghen, in its judgment urged BFIG to approach the lower court with its request, saying the Supreme Court was not in a better equipped position than either the Court of Appeal or the Federal High Court to take on such additional task, considering its already bloated workload.


‪Based on the position of the court, BFIG legal team was made to withdraw its motion and consider approaching the lower court for the restitution of its right, a decision that was promptly accepted by the court.‬


‪But, when asked to respond to the decision to withdraw the motion, counsel to BPE, Wole Olawonyin, objected to it; saying rather than concede to BFIG’s request to withdraw, the motion should have been dismissed with substantial cost of N250,000.‬


‪Irked by Mr. Olawonyin’s response, Justice Onnoghen, chided him for his comment, saying were his client to have behaved responsibly by complying to the order of the court there would not have arisen the need to return to the court the second time.‬


‪”It is easy to ask another person to pay substantial cost for withdrawing a motion. That’s unfair! You forget that if your client were to have behaved responsibly, by complying to the order of the court, there would not have been the need to come back here,” Justice Onnoghen said.


Justice Onnoghen, who expressed surprise that BFIG was back in court after a clear judgment was delivered in its favour, proceeded to read again the specific order in the July 6, 2012 ruling of the court, pointing out that the order for specific performance was so clear and unambiguous, wondering why it was so difficult for BPE to comply with it.‬


‪When his attention was drawn to the fact that BPE not only failed to comply with the court order, but also refused to pay the N50,000 cost awarded to BFIG, Justice Onnoghen upheld his ruling for BFIG to withdraw the motion without a cost.‬


‪He, however, advised both parties to bear their individual cost of approaching the lower court for the enforcement of the July 6, 2012 judgment.‬

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