The Appeal Court in Abuja on Tuesday criticised last Sunday’s announcement by the Minister of Mines & Steel Development, Kayode Fayemi, of the signing of a “renewed Share Purchase Agreement, SPA” with UC RUSAL as a continued attempt to frustrate the enforcement of the Supreme Court order for the takeover of Aluminium Smelter Company of Nigeria, ALSCON, Ikot Abasi.
The Minister’s announcement through his spokesperson, Olayinka Oyebode, came barely 48 hours before a scheduled ruling of the court in an appeal filed by Dayson Holdings Limited.
Dayson, the special purpose vehicle used by the Russians to bid for ALSCON in 2004, had filed the appeal to restrain BFI Group from demanding the enforcement of the September 30, 2014 Federal High Court, Abuja judgment on ALSCON.
In the ruling, Justice Abdukadir Abdu-Kafarati (now Justice Abdu-Kafarati of the Supreme Court) had ordered 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 asked BPE to “forthwith take full control and possession of ALSCON from anybody, including UC RUSAL et al. and prepare same for handover/transfer to (BFI Group).”
After the notice of appeal on July 10, 2015, Dayson had abandoned the case until November 5, 2017 with a request to reactivate the appeal, barely three days before the ruling in another case by BFI Group seeking $2.8 billion compensation against UC RUSAL.
BFI Group accused the Russians of ‘tortuous interference’ in its contractual relations with BPE, as well as “conspiracy to defraud, unfair competition and interference in prospective business advantage in the acquisition of ALSCON.”
In announcing the new deal with the Russians, the Minister’s spokesperson said the “agreement ends decade of legal tussle with BFI Group”, the Nigerian-American consortium declared winner of the bid for ALSCON in 2004 by National Council on Privatization, NCP.
PREMIUM TIMES had noted that the Minister’s announcement appeared to be in defiance of the July 6, 2012 Supreme Court “order of specific performance” to the BPE on how to resolve the intractable ownership tussle for the plant.
But, in the ruling by the Appeal Court, Abuja, on Tuesday, Justice A. D. Yahaya, said: “The behavior exhibited so far (by the Minister and BPE) is tantamount to a calculated attempt to waste the time of the Court and to continue to frustrate a specific and clear Order of the Supreme Court to execute its judgment. We cannot allow that.”
The court equally removed all orders that restrained the Federal Government from enforcing the July 6, 2012 order of the Supreme Court in favour of BFI Group.
Background
Following BPE’s unilateral cancellation of the National Council on Privatization, NCP’s recognition of BFI Group on based on its offer of $410 million for ALSCON, the consortium on September 2004 filed a case in an Abuja High Court.
In the suit No. FHC/ABJ/SC/406/04, BFI Group asked the court to “restrain BPE from giving effect to its July 9, 2004 decision to disqualify it as the preferred bidder and core investor.
The firm also asked the court to stop BPE from “inviting any person(s), group or company to make a bid for the purchase of any share or any of the shares being held by the Federal government of Nigeria in the capital of ALSCON”.
Supreme Court ruling
For over eight months, the case lingered till the Supreme Court delivered a unanimous judgement on July 6, 2012 in Case No. SC. 12/2008.
In the ruling, the court issued “an order of perpetual injunction . . . restraining (the BPE) … from inviting any further bidding for the sale and acquisition of ALSCON in violation of the contract with BFIGroup.”
The court also barred BPE from “negotiating to sell, selling, transferring or otherwise handing over ALSCON to any person or persons in violation of the contract between it and BFI Group.”
On October 8, 2012, ostensibly in pursuit of the Supreme Court order, the BPE sent BFI Group a proposed SPA for review and approval before execution.
On October 24, 2012, BFI Group said it promptly returned to BPE a revised version of the SPA and requested for an immediate meeting to discuss the details. BPE did not respond.
Offer for ‘Aluminium Shelter’ shares
In January 2013, BPE sent an offer letter to BFI Group to “Purchase 77.5 per cent shares of the ALUMINIUM ‘SHELTER’ COMPANY OF NIGERIA, ALSCON instead of ALUMINIUM ‘SMELTER’ COMPANY OF NIGERIA, ALSCON.
The letter was accompanied by a 16-page SPA, instead of the 58-page SPA reviewed and sent earlier on October 8, 2012 for BFI Group’s review and approval.
The execution of the SPA was stalemated, as BFIG rejected it on the ground that it was not interested in acquiring the shares of the ‘ALUMINIUM SHELTER COMPANY OF NIGERIA’.
On February 13, 2013, BFI Group said it decided to sign the October 8, 2012 SPA sent by BPE. But, BPE’s refusal to countersign, resulted in BFI Group filing an enforcement action at the Federal High Court of Abuja.
On September 30, 2014, then Justice Abdu-Kafarati ordered BPE to fully enforce the Supreme Court judgment of July 6, 2012.
Justice Abdu-Kafarati further asked BPE to “forthwith take full control and possession of ALSCON from anybody, including UC RUSAL et al. and prepare same for handover/transfer to (BFI Group).”
On October 20, 2014, UC RUSAL proceeded to file a separate action at the Federal High Court, Uyo asking it to intervene and restrain the BPE from executing the Supreme Court and the Federal High Court, Abuja orders.
On November 10, 2016, Justice Ijeoma Ojukwu in her ruling dismissed UC RUSAL’s claim, describing its continued questioning of the Supreme Court decision as not only “unimaginable”, but made it nothing more than a “busy body”.
“From where I sit/stand, the above judgment of the Supreme Court is clear and unequivocal and leaves no room for speculation,” Justice Ojukwu said in her ruling.
Fayemi ‘intervenes’
In April 2017, Mr. Fayemi visited ALSCON and was received by UC RUSAL’s managing director, Dimitriy Zaviyalov.
During the visit, Mr. Fayemi assured the Russians of government’s commitment to “free the complex of any encumbrances”, regardless of the pending Supreme Court rulings.
Later in August 2017, the BFI Group Chief Executive, Mr. Rueben Jaja said he was invited to a meeting Mr. Fayemi presided. He said the Director General of BPE, Alex Okoh, and other officials were present.
At the meeting, Mr. Jaja said Danba & Associates Limited, led by its Chairman/CEO, Saadina Dantata, who claimed to be UC RUSAL’s agent, presented a proposal to BFI Group to accept an offer to relinquish its legal rights to ALSCON on the strength of the Supreme Court ruling of July 6, 2012.
Mr. Dantata’s appointment as the Russians’ representative and leader of the delegation from Danba & Beltech Exim was conveyed in a letter sent to BPE by UC RUSAL to “negotiate in the disputes over the ownership of ALSCON.”
During the meeting on August 21, 2017, Mr. Jaja said an initial offer of $30 million was made by Mr. Dantata on behalf of UC RUSAL payable to BFIG over 20 years if it agrees to sign off all settlement agreements to terminate all outstanding legal cases in court in relation to the deal to acquire ALSCON.
Following BFI Group’s rejection of the offer, Mr. Jaja said the meeting of the group on August 28 later resolved to send in absentia through BPE an adjusted final offer of $35 million, consisting $20 million initial payment, plus another $10 million spread over 20 years, on the same conditions “in the spirit of an amicable settlement.”
Apart from BFI Group’s rejection of the offer, Mr. Jaja said the consortium was ready to refund the entire amount paid so far by the Russians for ALSCON as a condition for BPE to produce the SPA for execution.
Mr. Jaja said BFI Group’s offer had angered Mr. Fayemi who threatened to invoke government powers to revoke the entire ALSCON sale transaction.
The minister’s response to PREMIUM TIMES’ enquires on BFI Group’s alleged meetings was that they still part of his “effort to find an amicable settlement of the crisis.”
On November 8, 2017, Justice Jude Okeke of the High Court of the Federal Capital Territory, Maitama said in his ruling that the enforcement of the Supreme Court order of July 6, 2012 remained the most viable option to resolve the lingering crisis over the sale of the ALSCON.
The suit No. FCT/HC/CV/522/2011 was filed by BFI Group against UC RUSAL and its allies for interference, resulting BPE’s refusal to uphold the Supreme Court order for its reinstatement as the winner of the bid for ALSCON.
Justice Okeke had ordered BPE to provide the “mutually agreed SPA,” negotiated in 2004 for execution, to enable BFI Group pay the agreed 10 per cent of the accepted price of $410 million within 15 working days from the date of the execution of the SPA.
Dayson activates abandoned appeal
Rather than provide the SPA as ordered by the court, BFI Group said Dayson pre-empted Justice Okeke’s ruling by filing a legal process on November 5, 2017 to activate an abandoned appeal No. CA/A/637A/2014 opposing the enforcement of the Supreme Court ruling.
However, in the ruling of the Court of Appeal on Tuesday, January 23, 2018, obtained by PREMIUM TIMES on Thursday, Justice Yahaya said although Dayson was given seven days within which to file an expedited appeal in 2015, it “went to sleep.”
“Since filing the motion (on November 5, 2017) for extension of time to transmit record, Dayson Holdings Limited again went to sleep and has not bothered to move the application. It has also not filed any brief in respect of the appeal,” Justice Yahaya said.
“The only reasonable conclusion that we can reach is that the said Dayson Holdings Limited, the appellant in CA/A/637A/2014 was really interested only in obtaining the Order of Injunction, and not the prosecution of the appeal it labored to obtain leave to file.
“An indolent appellant who has shown such laxity is not entitled to a favourable consideration by ths court, which is a court of equity.
“The behavior exhibited so far is tantamount to a calculated attempt waste time of the court and to continue to frustrate a specific and clear order of the Supreme Court to execute its judgment. We cannot allow that.”
In delivering the judgment, Justice Yahaya also quashed all injunctions that constituted a restraint to the enforcement of the Supreme Court’s ruling on ALSCON.
BFI Group reacts
In his reaction, BFI Group’s General Counsel, Jimmie Williams, said in a response sent to PREMIUM TIMES on Thursday that Mr. Fayemi’s announcement of the signing of a renewed SPA with the Russians on Sunday was “act in bad faith, particularly as it came a day before the appellate court hearing.”
Mr. Williams warned that BFI Group has neither approved nor accepted any out of court settlement with the Nigerian government or BPE over ALSCON, as the Minister has not mediated any resolution.
“Any statement to the contrary is folly, and subjects its maker to legal process,” he said.
In his reaction, BFIGroup’s CEO, Reuben Jaja, said “the legal status of BFI Group as the Preferred Bidder/Core Investor of ALSCON based on the extant and subsisting judgment of the Supreme Court cannot be wished away by the BPE or any other person, including the Minister.”
“How can a Minister of the Federal Republic of Nigeria supervise the signing or renewal of an SPA voided by the Supreme Court of Nigeria? This blatant disregard of the rule of law for whatever consideration by the Minister, and his foreign conspirators, must be investigated,” Mr. Jaja said.
He said Mr. Fayemi had in past accused BFI Group of refusing to sign the August 2017 SPA provided by BPE, but failed to acknowledge that the signing of the agreement required the dismissal of all appeals and injunctions obtained by UC RUSAL to prevent the handover of ALSCON.
Mr. Jaja said until the Court of Appeals removal of the injunction on Tuesday, BFI Group was legally prevented from signing any SPA with BPE.
Source: https://www.premiumtimesng.com/business/business-news/256827-alscon-ownership-appeal-court-dismisses-new-nigerian-govt-russia-agreement.htmlFront Page: lalasticlala 
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