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Again, Supreme Court Sacks Russian Firm, UC RUSAL

For the umpteenth time, United Company RUSAL has been sacked from the Aluminium Smelter Company of Nigeria, ALSCON, Ikot Abasi in Akwa Ibom State.

The Supreme Court gave the order, in a judgement it delivered on July 11. PREMIUM TIMES received a copy of the judgement on Tuesday.

It was the third time since 2004 that the Russian aluminium firm would be asked to hands off the company.

In the judgement, the Supreme Court in a unanimous ruling by a five-member panel led by Justice Olabode Rhodes-Vivour, dismissed for lack of merit, the application by Dayson Holdings Limited against BFI Group Corporation (BFIG) and Bureau of Public Enterprises (BPE).

Dayson Holdings had filed the application on behalf of UC RUSAL, seeking a review of the July 6, 2012 judgement of the Supreme Court, annulling the controversial handing over of ALSCON to UC RUSAL by BPE in 2006.

Following the privatization process, which culminated in the final bid for ALSCON held on June 14, 2004, BFIG had emerged the preferred bidder, after UC RUSAL was disqualified by the National Council on Privatization, NCP, for violating the bid guidelines.

But the BPE later disqualified BFIG too, allegedly for failing to meet the deadline for the payment of $41 million, being 10 per cent of the $410 million offer for the plant.

Instead, the Bureau re-invited UC RUSAL for fresh negotiations, despite the earlier disqualification of the company by the NCP.

BFIG had responded by approaching the court to declare a legal dispute, which dragged for more than eight years, culminating in the July 6 judgement by the Supreme Court.

The unanimous ruling declared as illegal, null and void the handing over of ALSCON to UC RUSAL by BPE on the basis of the agreement reached at their negotiations in 2006.

Despite the Supreme Court ruling, the ownership of ALSCON remained with the Russians in defiance of the specific directive to the BPE to invite BFIG to execute the mutually agreed share purchase agreement (SPA) with a view to taking over the plant.

Besides, the House of Representatives Committee on Privatization and Commercialization, at the end of a public hearing on the non-implementation of the Supreme Court ruling, had urged BPE to comply with the rule of law and take steps to take control of ALSCON from UC RUSAL.

Subsequently, BFIG returned to the Federal High Court, Abuja in 2008 to seek the interpretation and enforcement of the subsisting order of the Supreme Court. But BPE joined UC RUSAL to oppose the application.

However, the court in its ruling in September 2014 directed BPE to “fully enforce and give effect to the meaning and intendment of the judgment of the Supreme Court of July 6, 2012,” a resolution Dayson Holdings also ignored.

But the Russians proceeded to file an application in November 2015 to demand the Supreme Court to, not only review its July 6, 2012 judgment, but also set it aside altogether, and confirm it as the owner of ALSCON.

The court rejected the request as incompetent and without merit.

Prior to the latest ruling of the Supreme Court, the House of Representatives Committee on Privatization and Commercialization on May 2016 again reaffirmed its previous resolution urging BPE to respect and enforce the Supreme Court order.

Consequently, in May, the BPE convened a meeting with the Chairman/Chief Executive of BFIG, Reuben Jaja, to discuss the implementation of the Supreme Court ruling.

During the meeting, PREMIUM TIMES learnt that both parties agreed that BFIG would pay $41 million, being 10 per cent of the offer price of $410 million for ALSCON within 15 working days, in line with the May 20, 2004 mutually agreed share purchase agreement (SPA).

Also, the meeting agreed that BFIG would accept the handover/transfer of ALSCON from BPE and participate in the comprehensive engineering and financial audit by KPMG of the plant, taking into consideration the balance of $369 million to be paid.

Mr. Jaja told PREMIUM TIMES in an exclusive interview on Tuesday in Abuja that the latest ruling of the court underscores the point that BFIG was the legal and legitimate owner of ALSCON, subject to the terms and conditions of the acquisition in 2004, although that was achieved at a high premium.

“It is most painful that we had to wait for more than 12 years to get justice over our legitimate effort to acquire ALSCON. Between 2004 and 2016, BFIG traversed various courts in Nigeria, U.K.,U.S., British Virgin Islands and other part of the world to pursue about 24 different legal cases, spending over $27.9 million in legal and other fees on the case,” Mr. Jaja said.

“The handover of the plant was marred by massive corruption involving some individuals who are today parading this country as saints. Our hope is that the federal government would move swiftly to put a full-stop to the flagrant abuse of the court process, particularly the blatant disregard of the Supreme Court judgment.

“It is time for the government to expedite the process of taking over of ALSCON by BFIG to enable it turn it into a performing asset, to create jobs for Niger Delta youth, create wealth for the people and support the local economy of the region,” Mr Jaja said.