Supreme Court Sentences Ex-BPE DG, Okoh To 30 Days In Prison Over Serial Disobedience On ALSCON

Former Director-General of the Bureau of Public Enterprises (BPE), Alex Okoh has been sentenced by the Supreme Court to 30 days in jail for his serial disobedience of the apex court orders while in office over the controversial sale of the multi-billion dollar Aluminium Smelter Company of Nigeria (ALSCON).

 

The term of imprisonment for the sacked BPE DG was confirmed in a unanimous ruling over an appeal filed by BPE against the order by the Appeal Court over his alleged serial contempt and disobedience of the Supreme Court order contained in its ruling of July 6, 2012.

 

Also, the apex court awarded a N20 Million cost against Okoh and BPE in favour of BFIGroup, the company that was declared by the National Council on Privatisation (NCP) as the winner of the bid for ALSCON in 2004, which BPE unilaterally voided in controversial circumstances, stirring a long drawn legal battle that resulted in the July 6, 2012 order.

 

In addition, the Supreme Court issued an order of perpetual injunction restraining BPE from going into any negotiations or contract with any other investor over the sale of the Federal Government equity in ALSCON.

 

Besides, the court ordered the immediate sack from the plant of UC RUSAL, the Russian firm the BPE illegally handed over the plant to after cancelling the declaration of BFIG as the winner.

 

The Federal High Court, Abuja presided by Justice Anwuri Chikere had, on December 17, 2019, issued the original order for Okoh to be sent to jail following a committal proceeding instituted by BFIG against him and the BPE for failure to fully execute the judgment of the Supreme Court and Court of Appeal in the matter filed against them over the unilateral decision to cancel the outcome of the 2004 bid for ALSCON.

 

Although BPE filed an appeal on December 24, 2019, for a stay of execution of the committal order against Okoh, the Appeal Court in a unanimous ruling by Justices Stephen Adah, A. Mustapha and Kenneth Amadi affirmed the Federal High Court, Abuja order.

 

Initially, the Supreme Court had fixed October 31, 2023, for its ruling on the appeal, but had to shift it to January 26, 2024.

 

BFIG is the Nigerian-American consortium that stood for the bid for the Federal Government shares in ALSCON in 2004.

 

On July 6, 2012, the apex court, in a unanimous ruling, affirmed BFIG as the winner of the bid for ALSCON after the NCP declared it the winner and preferred bidder with an offer of $410 million.

 

However, BPE unilaterally cancelled the win in controversial circumstances, resulting in BFIG taking the matter before the court in 2006.

 

The case dragged till July 2012 when the Supreme Court gave “an order of specific performance” to BPE to rescind its earlier decision to cancel the bid, reinstate BFIG and hand over ALSCON based on the outcome of the bid held in 2004.

 

Several months after the Supreme Court ruling, BPE, under Okoh, refused to enforce the consequential order.

 

In 2013, BFIG filed a petition at the Appeal Court for the enforcement of the Supreme Court order. The application was granted.

 

In 2014, BPE, in defiance of the Supreme Court’s order, filed an application at the Court of Appeal against the decision of the Federal High Court, Abuja.

 

After a prolonged hearing, the Appeal Court presided by Justice Abdul Aboki on January 11, 2017, reaffirmed the sanctity of the Supreme Court ruling and demanded immediate compliance by BPE. Again, the directive was disobeyed.

 

On March 27, 2017, BFIG, wrote to remind Okoh and BPE about the dire consequences of the continued disobedience of the Supreme Court order, threatening to issue Forms 48 and 49 to activate committal proceedings against him and BPE.

 

Under the Civil Process Act, Cap. 551, Laws of the Federal Capital Territory (FCT) and the Judgment Enforcement Rules, Form 48 contains a copy of the court order to be served on the respondent for compliance. Where the respondent fails to comply, Form 49 is issued for committal to prison for contempt.

 

After two orders of the lower court seeking the enforcement of the Supreme Court ruling failed to persuade BPE to reverse its controversial decision, BFIG on April 2, 2019, commenced contempt proceedings against BPE and Okoh, after serving them the Form 48. Both ignored the court proceedings.

 

The court insisted that it was in the “interest of justice for it to exercise the powers for committal to enforce the full obedience and compliance with the binding orders of the Supreme Court and Court of Appeal.”

 

On April 10, the court issued a formal notice to BPE and Okoh threatening to commit them to prison for their continued disobedience of the directive of the Appeal Court and order of the Supreme Court in respect of the ownership crisis in ALSCON.

Okoh’s long road to prison

On January 11, 2019, the Appeal Court delivered a judgement in Suit No. FHC/ABJ/CS/901/2013 and Court of Appeal No. CA//637/2014 between BPE and BFIG.

 

In the judgment, Justice Abdu Aboki reaffirmed the sanctity of the Supreme Court judgment, while ordering its full enforcement by BPE.

 

Specifically, the judge directed BPE to “provide the mutually agreed Share Purchase Agreement (SPA) for execution by the parties.”

 

Justice Aboki said the agreement would enable BFIG to pay the agreed 10 per cent of $410 million (about $41 million) within 15 working days from the date of the execution of the Share Purchase Agreement by the agreement dated May 20, 2004.

 

“The balance of 90 per cent of the bid price shall be paid within 90 calendar days as ordered by the Supreme Court,” the judge said.

 

The judge said the ruling set aside the judgment in Suit No FHC/ABJ/CS/901/2013 of September 30, 2014, delivered by Justice Ashada Abdu-Kafarati of the Federal High Court, Abuja, which ordered BPE to accept 10 per cent of the purchase price, or $41 million, to be paid within 15 working days of the enforcement order, or not later than October 24, 2014.

 

Also, the judge directed the balance of $ 369 million to be paid as per the audited financial statement by KPMG as of the date of the judgment.

 

On January 14, 2019, BFIG wrote to BPE to draw its attention to the consequential orders of the appeal court and the need to ensure strict obedience. BPE did not respond.

 

On January 25, 2019, BFIG wrote again to BPE to request for a clean copy of the SPA for execution in compliance with the subsisting judgment/orders of the Supreme Court as reinforced by the Appeal Court. Still, no response came from BPE.

 

On February 4, 2019, BPE finally responded, accompanied by a 16-page Share Purchase Agreement (SPA), which was faulted by BFIG as not the original copy approved by the court.

 

The document was not accompanied by any of the 17 annexures classified and acknowledged by Section 19.1 of the agreement as key parts of the original SPA, including a financial statement of ALSCON for the year ended December 31, 2004; ALSCON Post-Acquisition Plan; List of Liabilities of ALSCON; List of Facilities of ALSCON; List of land Plots of ALSCON; List of Compensation Scheme of Employees of ALSCON, and List of Employee Benefit of ALSCON.

 

The other annexures included a List of Intellectual Property of ALSCON; a List of Material Contracts of ALSCON; a List of Banks of ALSCON; List of Government Authorities of ALSCON of ALSCON; Exhibit No. 1: Natural Gas Sales and Purchase Agreement; Exhibit 3: Federal Republic of Nigeria Officials Gazette, and Exhibit 4: Power of Attorney.

 

Again, BPE said in its response to BFIG that it was committed to an ongoing consultation to resolve critical issues (including gas supply and price) to enable the “core investor, UC RUSAL/Dayson Holdings” to open and operate ALSCON profitably.

 

In its reaction, BFIG accused BPE of serial attempts to frustrate the takeover of ALSCON based on the Supreme Court’s order.

 

BFIG said Okoh was categorical about BPE’s refusal to provide it with the complete SPA containing the annexures, which formed part of the mutually negotiated and agreed SPA in July 2004.

 

BFIG reminded BPE that it was commercially and legally impossible to execute the SPA in compliance with the Supreme Court orders without the SPA and its annexures.

 

On February 27, 2019, BFIG executed and delivered to BPE for counter signature the mutually agreed SPA (Exhibit BPE 1) with all annexures as provided by BPE in 2004 and reproduced in 2012 pursuant to the Supreme Court judgment on July 6, 2012.

 

On March 4, BFIG said BPE executed the SPA, “but removed ALL of the annexures, returned an incomplete document to BFIG”.

 

On March 5, BFIG again wrote to BPE to demand the execution of the SPA, along with the agreed Annexures in 2004 and reproduced by BPE on October 16, 2012, after the Supreme Court order.

 

On March 27, 2019, BFIG wrote to Okoh to object to “BPE’s introduction of strange and unilateral terms to the mutually agreed share purchase agreement (SPA) of June 2004” approved by the Supreme Court in its July 6, 2012 judgment.

 

BFIG demanded the immediate and unconditional compliance with the judgment as affirmed in the January 11, 2019 ruling of the Court of Appeal.

 

Failure to meet its demand, BFIG threatened to commence contempt proceedings against Okoh and BPE by issuing Forms 48 and 49 from the Federal High Court bordering on committal to prison contemptuous conduct.

 

BFIG accused Okoh and BPE of conspiracy to frustrate the enforcement of the July 6, 2012 order of the Supreme Court on the ownership crisis in ALSCON.

 

Under the Civil Process Act, Cap. 551, Laws of the Federal Capital Territory (FCT) and the Judgment Enforcement Rules, Form 48 usually contains a copy of the court order served on the respondent for mandatory compliance within 24 hours.

 

Where the respondent fails to comply, the court usually follows with the issuance of Form 49 for committal of the offender to prison for contempt.

 

BFIG said the implication of the ruling was that Okoh would be remanded in prison for at least 30 days until he purged himself of acts of disobedience and complied with the Supreme Court order.

 

BFIG said it executed and delivered to BPE for counter-signature the mutually agreed SPA (Exhibit BPE 1) with all annexures as provided by BPE in 2004 and reproduced in 2012 pursuant to Supreme Court judgment on July 6, 2012.

 

On March 4, BFIG said BPE executed the SPA, “but removed ALL of the annexures, and returned an incomplete document to BFIGroup.”

 

On March 5, BFIG again wrote to BPE to demand the execution of the SPA, along with the agreed Annexures in 2004 and reproduced by BPE on October 16, 2012, after the Supreme Court order.

 

In his response, Okoh dared BFIG to go ahead with its threat to commence contempt proceedings against him and BPE.

 

On March 11, Okoh asked BFIG to comply with the orders of the court by depositing the agreed $41 million, while “deliberations on the annexures should be deferred till both parties (BPE and BFIG) have complied with and executed the judgments of the Supreme Court and the Court of Appeal.”

 

“If the Bureau does not receive an executed copy of the mutual agreed Share Purchase Agreement, and payment of the agreed sum of $41 million, representing 10 percent of the bid price within 15 working days, the Bureau will consider itself as being no longer bound by the agreement,” Okoh said.

 

Okoh said BPE would equally consider itself not contractually bound to BFIG if the balance of $369 million was not paid within 90 calendar days of the payment of $41million.

 

In its motion on notice, BFIG urged the court to enforce its order, as doing otherwise would allow BPE and Okoh to “continue in the scheme to unlawfully retain/hand over ALSCON to Dayson/UC RUSAL in patent disregard of the orders of specific performance and injunction decreed by the Supreme Court in July 2012.

 

With additional reports from Mediatracnet.