N300bn suit against AMCON: reports are false – Bi-Courtney



The Bi-Courtney Consortium has faulted what it described as erroneous reports in some media outlets, which claimed that a N300bn suit it brought against the Assets Management Corporation of Nigeria (AMCON) was dismissed by the Federal High Court sitting in Lagos.

The company, owned by Dr. Wale Babalakin SAN, maintained that the reports were a distortion of the facts, even as it wondered why a judgment delivered on May 3, 2016 was suddenly moulded into ‘breaking news’ in some print and online media in mid-August.

“It is not a new case, it is not a new judgment,” a senior member of Bi-Courtney’s legal team averred.

The legal counsel insisted that, contrary to reports, “The issue of whether AMCON was liable to pay damages to Bi-Courtney was never determined by the court.

“For the avoidance of doubt, the parties to the case had indeed entered into an out-of-court settlement as set out in an offer letter by AMCON, dated May 7, 2014. It was on account of the non-production of the said letter in court that Hon. Justice M. B. Idris dismissed the suit. We have filed a notice of appeal and we will have our day in court.”

According to court papers, Bi-Courtney as the claimant had sought a number of reliefs against AMCON as the defendant. The first relief (Relief 1) sought: “A declaration that as at the 22nd of September 2014, the defendant’s offer letter dated 7th May, 2014, cannot create a new cause of action.” The ‘new cause of action’ referred being an ex-parte order granted on September 22, 2014 (Suit no. FHC/LCS/1361/2014) which prevented Dr. Babalakin from drawing from his bank accounts, with the resultant damage to his reputation and businesses.

Among other reliefs, Bi-Courtney sought an award of general, aggravated and exemplary damages totaling N300bn – which the company insists were never determined by the court.

Legal experts say the failure to produce the offer letter proved injurious to Bi-Courtney’s case. Delivering his judgment, Justice Idris stated that:

“Having failed to produce the offer letter of May 7, 2014, the Court cannot rightly determine if the letter constitutes a new cause of action and whether the other several alleged actions of the Defendant was right and whether the Claimants are entitled to any damages as a result of the actions of the Defendant.”

Bi-Courtney’s lawyers have expressed confidence for a favourable outcome of the suit on appeal.

“As clearly shown, the court did not determine our N300bn claim for damages, and reports to the contrary are inaccurate and lacking in credibility. We urge members of the press to check all available facts and seek clarification from us in future, before rushing to publish outdated and lopsided reports,” said the legal counsel, who also questioned whether the N10,000 costs awarded as ‘punitive damages’ in favour of AMCON represented a victory for the assets management corporation.

“Members of the public are discerning enough to reach their own conclusions about the N10,000 damages, which is symbolic at best,” he said.

Wasilat Famojure

The Honourable Minister of Power, Works and Housing, Babatunde Raji Fashola, SAN, is one of the shining lights of President Muhammadu Buhari’s cabinet. A ‘super minister’, the former Lagos governor has been given three major ministries, each of undeniable significance to Nigerian lives. And to whom much is given, much is expected, as the saying goes. He has much to prove, and so he walks the talk, to show that he is a man with a plan. But in so doing, he cannot be seen to be riding roughshod over the intricacies that attend those areas over which he superintends. He must act with a deep sense of responsibility and due regard for the law and the principles of natural justice.

This note of caution does not come a moment too soon. Fashola has been firing from all cylinders over the Lagos-Ibadan Expressway, often sending mixed signals. Hardly anyone can contradict what he said in a speech in December 2015, that, “Good roads will help reflate and grow our economy, reduce travel time, cost of transportation of goods and services, and restore jobs that have been lost to transport dependent services. They will improve safety of lives and property and our security index.”




The Minister followed up with his speech of January 22, 2016, at the Nigerian Pension Industry Strategy Implementation Roadmap Retreat, in which he signaled the willingness to use Pension funds for the provision of infrastructure. The speech sparked an ideological debate among Nigerian intellectuals including Kayode Komolafe, Chidi Amuta and Femi Falana; and caused a concerned Olusegun Adeniyi to ask: “Can we really take a risk with the Pension Fund to drive development, as suggested by Fashola, even with all its implications?”

The Pension speech was illuminating in showing the moral and legal quagmire successive Nigerian governments have got themselves into over the Lagos-Ibadan Expressway, arguably the most important road artery in this country. Government has tied itself up in knots with the many controversial executive U-turns over the road, and Fashola as Works Minister in the current administration, allowed his befuddlement to show in his speech.

Hear him: “The Lagos-Ibadan Expressway is a story of what investors don’t like.” He can say that again. In his summary of how an otherwise historic Concession Agreement went awry between the FG and Dr. Wale Babalakin’s Bi-Courtney Highway Services Limited, tagged “Company A” in the Pension speech, Fashola conceded that it was no way to treat an investor. Noting that “local investors are the most important in any economy,” he observed that the unceremonious cancellation of Bi-Courtney’s concession was “a not welcoming message” to foreign investors, if patriots like Babalakin could be treated with such disdain.

However, in expressing these concerns, Mr. Fashola did not seem to be entirely clear as to the trajectory – not to mention the causative factors – of the convoluted matters relating to the road through which he must now forge a path for the benefit of Nigerians. He suggested that Bi-Courtney’s first recourse should have been arbitration and not the courts; and went further to imply that a suit brought by the thwarted concessionaire caused the cessation of works on the road.

In a letter dated 25th January, 2016, Babalakin drew Fashola’s attention to the erroneous detail in his keynote speech. For in a letter from exactly three years before, dated 25th January 2013, Bi-Courtney had written to Fashola’s predecessor at the Ministry of Works, Arc. Mike Onolememen, asking Federal Government to set up a Dispute Resolution Board as provided for under the concession agreement. Government should work in continuity, and Fashola ought not to have been ignorant of the fact that the ministry under Onolememen blatantly ignored Bi-Courtney’s overture. The company was therefore left with no choice but to seek the intervention of the courts.

As stated in Babalakin’s letter to Fashola, “The court that set aside the so called Finance Agreement acted in the only manner available to it. Courts cannot continue to condone acts of government that are demonstrably irresponsible if we have to sustain our democracy and develop our economy.” The letter also debunked the suggestion of a nexus between Bi-Courtney’s court action and the stoppage of work by contractors put in the frame in a questionable manner by the former administration of President Goodluck Jonathan. “How could an order obtained on 14th December, 2015, be responsible for work that had stopped about seven months earlier?” asked Babalakin.

Since the Pension speech, we have had a lot of motion without movement, an all too familiar scenario for road users who ply the Lagos-Ibadan Expressway. The minister has made statements about what he plans to do with the road, while exhibiting a worrying disregard for a concessionaire who has stood by the rule of law, in the hope that justice and reason will prevail. No longer mindful of his earlier declared approach of “not going into the merits and demerits of the FGN’s cancellation of (Bi-Courtney’s) concession”, Fashola now says he will “fix” the road. The clouds over the Budget have dissipated finally, and government money will now be pumped into the construction.

Fashola would rather expend taxpayers’ money, in a depressed economy, on the Lagos-Ibadan Expressway when he can go back to basics, and revisit the aberration of a wrongfully cancelled arrangement concerning which the concessionaire cries for justice after losing $300m. “Why should the developmental process of Nigeria and the lives of Nigerians be held in abeyance because you are in court?” Fashola now asks.

It is truly disheartening to hear this from a Senior Advocate of Nigeria. Is it the man who goes to court that has stalled Nigeria’s development, or the government that impedes societal progress in a flagrant disregard for the law? Is this the Change we are selling? Meanwhile, Nigeria has lost its place as the erstwhile Third Fastest Growing Economy in Africa, and does not even figure among the Top 15 – according to the IMF’s World Economic Outlook for 2016. The World Bank’s Doing Business Report 2016 also ranks Nigeria as one of the worst countries in the world to do business. Instead of mitigating these dire reports by working to reengineer a business friendly environment, government seems bent on giving one of the country’s most courageous investors a drubbing. But at what cost? Why are we so blest?

One is minded to agree with Babalakin when he writes that, “The investment climate of Nigeria has been bedeviled by the short-sighted actions of public officers, especially when dealing with the rights of investors. So many investors have been totally ruined by the utterances and actions of public officers which are detrimental to the development of investor confidence and consequently have an adverse effect on the growth of the Nigerian economy.”
Mr. Fashola needs to set aside political considerations, perchance there be any, and act purely in the interest of Nigeria; and sit down with the erstwhile concessionaire to forge a path through the debacle that is the Lagos-Ibadan Expressway. Fashola’s legacy as Buhari’s ‘super minister’ depends on it, and future generations will thank him if he chooses the right path.

Dr. Famojure, runs a landscaping business in Lagos State

http://www.thisdaylive.com/index.php/2016/05/24/fashola-go-easy-on-lagos-ibadan-expressway/

By Debo Oduntan

The saying that justice delayed is justice denied seems to have been proved wrong this time. Rather, all we can say is that, though the wheel of justice grinds slowly, it will surely vindicate the just. No matter how long the truth is hidden, it must surely come to light with time.

Definitely, Dr. Wale Babalakin’s Resort International Limited will attest to this truism. Just recently, an Arbitration Tribunal found fault against the Federal Government for failing in its obligations to Babalakin’s company over the controversial stoppage of the Federal Secretariat Complex redevelopment project.

For not meeting its obligations, the Federal Government was ordered to pay a total of N54 billion in damages to Babalakin’s Resort International Ltd. This includes interest calculated at 17.26 percent commencing September 2008. In its claim at Arbitration, Resort International Ltd demanded N88 billion from the Federal Government for general and aggravated damages arising from the breach of a clause of the Development Lease Agreement (DLA).

The said DLA granted Resort a 99 years’ lease to develop the disused Federal Secretariat Complex, Ikoyi, Lagos, into 480 luxury apartments. If things had gone according to plan, the Federal Secretariat premises would have been populated by Nigerians living the 21st century life in ultra-modern surroundings by now.
But it was not to be. Work was apace on the complex when it all came to an abrupt end in 2007, no thanks to scores of armed mobile police and so-called ‘Area Boys’ who invaded the complex on the orders of the Lagos State Government, and brought redevelopment activities to a halt.

The stoppage was the proverbial last straw that broke the camel’s back, no thanks to a state government that would stop at nothing to frustrate the project, it seemed. Definitely, no one would deny that such untoward action exposed Babalakin to ridicule and very negative press, not only impugning his integrity but also discrediting his standing before several banks and organisations that had business and associated dealings with him.

Such brazen and barefaced action by LASG, was not unconnected with earlier moves by the state government to acquire the Secretariat Complex. When that failed, it resorted to rough tactics and political blackmail.
The Lagos monarch, Oba Rilwan Akiolu, accused the then Olusegun Obasanjo administration of handing over the complex to so-called powerful interests rather than to the state government, an allegation vehemently debunked by Resort International Ltd at the time.

In an all-out bid to frustrate the project, the Lagos State Government had come up with a plethora of unreasonable demands that included: requirement that Resort International Ltd, as leaseholder, obtain a fresh Certificate of Ownership (C of O) from Lagos State, not minding the documents earlier issued by the Federal Government in this regard.

Also, the company was required to apply for the consent of the state governor on property leased to them; even as it was ordered to apply for a change of use as well as a development permit from the government.
According to a Resort executive, “The state government demanded from 15 to 50 percent of the cost of properties from buyer as an additional condition before work can commence.” Despite all entreaties, the Lagos State Government refused to see reason, even as it refused to grant the “No-Objection Approval “required under Clause 1V of the DLA. It was the inability of the Federal Government to secure the “No-Objection Approval” that ruined the project.

The project stalled despite the huge sums of money already sunk into the redevelopment by Resort International Ltd. To cap it all, LASG promulgated a new law, almost as an afterthought, which retroactively finished off the Federal Secretariat project once and for all.

Given the level of impunity involved on the part of the Lagos State government, it is hardly surprising that the Arbitration panel decided in favour of Babalakin’s company on all three issues for determination. The Tribunal awarded damages, plus interest at 17.26%, totaling N54 billion as at January 2016, and counting. The Tribunal further affirmed Resort International Ltd’s title to the Federal Secretariat property at Ikoyi.
Clearly, Babalakin and his company have won an important victory in this long running saga. This ruling is a befitting denouement to the long struggles for justice. It goes a long way to set the record straight as to the rights and the wrongs of the case. People have a right to know what has deprived the city of Lagos, Nigeria’s commercial hub, of a much needed regenerative project that would have improved the area while giving a boost to the economy.

It is hoped that sanity will reign now, and that a way forward can be found on the Federal Secretariat Complex, for the larger good of society. We cannot keep asking investors to take a chance on our economy while we make a habit of pulling the rug from under their feet. Investor confidence is crucial to the growth sorely needed in our economy.

For the collective good, we implore all parties concerned to sheathe their swords and abide by the Tribunal’s ruling on the Federal Secretariat. This is on the understanding that, since they subjected themselves to the civilised norms of Arbitral adjudication, it is pertinent they abide by the outcome.

http://dailytimes.com.ng/justice-vindicated-babalakin/

By Idang Alibi

The Lagos-Ibadan Expressway is unarguably one of the most important road arteries in the country. At some point, it links nearly the whole of Nigeria’s business community to its commercial capital, Lagos. Its uniqueness and prime status lies in the fact that although it is located in the Yoruba country of Nigeria’s south-west region, it is neither a regional road, nor a Yoruba road nor a southern road.
Rather, it lays a solid claim to being called a pan-national road for it serves the economic interest of all peoples of Nigeria irrespective of their proximity to, or distance away from, it.
Nigerians living far away from it in places like Maiduguri, Sokoto, Calabar, Kaura Namoda and Port- Harcourt, who do not physically use the road, nevertheless enjoy the economic benefits which its existence facilitates. Therefore, if for any economic, political or whatever reason it is decided that it is only one road that will be constructed or rehabilitated any budget year, no one will begrudge that road being accorded the number one priority. So vital is this expressway to Nigeria that when it catches cold, the whole nation shivers as she has been shivering for some time now.
It is therefore hardly surprising that it is one of the ‘’200 Goodluck Jonathan roads’’ spread across the country which the Buhari government inherited and which the Minister of Power, Works and Housing, Mr. Babatunde Raji Fashola, has listed as one of the priority roads that will be completed this budget year. As a Nigerian who uses that road and who recognizes its critical importance to the country and the harm its long neglect has done to the country, I am a bit worried that in deciding to complete that road, Fashola seems to be glossing over one of the critical factorsthat has, for some time now, stalled work on it. Fashola said at a budget session with the House of Representatives’ committees on Power, Works and Housing and FERMA that the road is ‘problematic’.
However, having identified the problem impeding progress of work on the road, Fashola did not go a step further to tell Nigerians and the legislators what actions, if any, he and the Federal Government, have taken or intend to take, to address the underlying problem. This is worrisome because this failure could end up putting a permanent full stop to any further work on the road.
And what is it that has made the completion of the road, in the words of Fashola, ‘problematic’? A few years ago, 2009 to be precise, a concession agreement was entered into between the Federal Government and Bi-Courtney Highway Services Limited for the rehabilitation of the road. Somewhere along the line, according to reports, work on the road stalled because the Federal Government could not fulfil its contractual obligation to Bi-Courtney. It could not pay it for work done as stipulated in the agreement.
As is often the case in our country where a thin line separates politics from business, the concession was terminated by the Jonathan administration without allegedly following the due process and settling Bi-Courtney. Bi-Courtney went to court to protest the termination and demanded that it be compensated. It got a court injunction in its favour. The government went ahead nevertheless and entered into a new concession agreement with another firm known as Motorways Limited without reaching peace with Bi-Courtney.
Bi-Courtney again went to court and got yet another favourable judgment. Knowing the legal impediments that have frozen work on the road as Fashola does, one therefore expects that the action-oriented former governor and now minister, would have paused a little to sort things out before proceeding so as not to take one step forward and two or more backwards later. If you know the problem that have made a matter ‘problematic’, wisdom dictates that you address the recognized problem before you do anything else. I know that persons who are anxious to achieve, such as Fashola, operate by the maxim that it is better to err on the side of positive action than to err on the side of non-action or inaction. But in this particular matter where a legal landmine has been buried against hasty movement, the right thing to do is to err on the side of caution. Fashola should first seek to de-mine before he can think of what next to do that will be fair, just and legal to all the parties involved.
From the story of this sordid transaction, there is a noticeable tragedy of errors on the part of the Federal Government with no less than five parties involved, including RCC, Julius Berger and the people and economy of Nigeria. Bi-Courtney appears to be the most injured of the parties. And Bi-Courtney, we must note, is owned by one of the biggest lawyers in the country who knows his right and will not let go easily, not when he has two favourable court judgments in his pocket. It will therefore be in the interest of all, especially the good people of Nigeria, for these entanglements to be first sorted out so that we will not be forced to describe the Lagos-Ibadan Expressway as an ill-fated road project. Speed must be achieved against the background of rule of law and following the due process.
If there is any matter pending between the FG and the concessioners, Bi-Courtney, as Fashola himself admitted, sometime should be spent to first deal honestly, fairly and justly with Bi-Courtney before any other action can follow. We all understand the person of Fashola, his determination to achieve and the haste of the APC FG to begin to point to success stories to Nigerians who are anxious to begin to number Buhari’s concrete and ‘eye-marking’ projects.
It is a good thing that Fashola himself is not a small lawyer. He is among the best of the senior lawyers we have in the country. He is, besides, an astute administrator with a social conscience and the skills to negotiate complicated business and political deals. The time has come for all of these his justly famous competencies to be in evidence on this matter so that the Lagos-Ibadan road will not remain the scar on the conscience of Nigeria that it is today.

Read more at http://www.dailytrust.com.ng/news/opinion/fashola-bi-courtney-and-lagos-ibadan-road/134304.html#zoCv8H4Flu3xx7sZ.99