ALSCON: Supreme Court chides BPE for disobeying court order

The Supreme Court has chided the Bureau for Public Enterprises, (BPE), for failing 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 2006.

The Nigerian-American consortium, BFIGroup, which was declared the winner of the bid for the plant by the National Council on Privatization, (NCP), in 2004, but was disqualified and the bid cancelled by BPE, had gone to court seeking the revocation of the decision to transfer the ownership of ALSCON to RUSAL and its reinstatement as the authentic bid winner.

The Supreme Court by its ruling of July 6, 2012 had 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, SAN, said his client was back in court to seek an order directing BPE to fully enforce and give effect to the meaning and intendment of the judgment of July 6, 2012 by executing the mutually agreed SPA.

Olanipekun said that “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”, and urged the court to consider its application expeditiously, in view of the fast deteriorating state of the plant under litigation

Having listened to the submissions of the counsel to the BFIG, 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 position than either the Court of Appeal or the Federal High Court to take on such additional task, considering its already bloated workload.

Following the position of the court, BFIG legal team was compelled 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 Olawoyin, 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 is 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.

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