By Jide Ajani
This report presents the issues in the tango between the Assets Management Company of Nigeria, AMCON, and Bi-Courtney, owned by Wale Babalakin, and would show why the former may keep holding the short end of the stick if the real letters and spirit of the law are followed – that, without prejudice to whatever moralisation of the issue that it is bringing to the table on the matter of concession.
It was a cocktail of abuses! And worsestill, the abuses were being brandished by the state as badges of honour, believing that it was protecting the nation’s patrimony. The state thought it was right.
But all that was poured into judicial waste bin by a Federal High Court presided over by Justice Ibrahim Buba, qualifying them all as “gross abuse of court process”.
Last Monday, September 29, 2014, Justice Buba vacated an order, made by Justice Okon Abang, empowering the Assets Management Company of Nigeria, AMCON, to take over the assets of Bi-Courtney over debts which AMCON had put at N50billion.
Before the court judgement on Monday, AMCON’s counsel, Olisa Agbakoba, had declared himself in several paid advertorials as the receiver of Murtala Muhammed Airport 2, MMA2, a thriving and successful concession in the country.
He had good cause to so act. AMCON and Agbakoba were relying on an earlier court order which granted them the magna charter to virtually take over the life of Bi-Courtney.
But penultimate week, Bi-Courtney also got an order putting a temporary halt to the effectuation of the earlier judgment.
Therefore, last Monday, Bi-Courtney, presented its submission before Justice Buba that AMCON and Agbakoba obtained their earlier order by concealing the existence of two court orders since 2011 in suit numbers FHC/L/CS/1305/2011 and FHC/L/CS/1306/2011, which specifically restrained the Federal Government and AMCON from interfering with operations and finances of Bi-Courtney Limited and Resort International Limited as well as their related or associated companies.
The judge, in his ruling, agreed with Bi-Courtney’s position and categorically affirmed that the order obtained by Agbakoba on behalf of AMCON constituted a gross abuse of the process of court and was designed to ridicule the legal system.
The judge further declared the order a nullity ab-initio, which means that, in the eye of the law, it never existed in the first place and any action taken by AMCON or its counsel, or purported receiver, further to the illegal order, was and remained a nullity. Perhaps, what AMCON and Agbakoba ought to have done swiftly was to take possession immediately after they got their order to take possession. They did not.
Contentious concession
Sunday Vanguard discovered that the Federal Government was convinced in the actions it set out to take, convinced that the concession granted Bi-Courtney was deliberately skewed in its favour.
Whereas, the casus belli of this whole saga can be located in the Federal Government’s dissatisfaction with the concession granted Bi-Courtney by the Olusegun Obasanjo administration; and whereas the Goodluck Jonathan administration as the government of the day has the right to review concessions; in doing so, however, in a country governed by law, AMCON’s every step must be within the ambit of the law.
A Federal High Court in Abuja had earlier ruled that AMCON and the Federal Government of Nigeria owe the terminal operators, Bi-Courtney Limited, N132billion, which has remained unpaid till date. So, how did the Federal Government of Nigeria get itself enmeshed in this messy affair?
Going by the submissions of parties involved in the dispute, it is clear that the seed of discord was sown by the Federal Government shortly after MMA2 started operations in May 2007.
Sunday Vanguard learnt that the concession agreement provided for a coordinating committee with three representatives from the Federal Government and three from the concessionaire.
Based on allegations that there were a series of breaches on the part of the Federal Government, the concessionaire approached the arbitration body, stating that it has been denied the exclusivity clause and several revenue sources in the concession agreement.
Bi-Courtney is expected to make its revenue from passenger traffic, cargo handling, parking space, advertisements, space rental, and fuel surcharge on every litter of petrol sold, among others, as these were the revenue streams on which a consortium of banks had based their financial projections and assumptions before they granted the firm a loan to build the terminal.
The firm submitted to the arbitration body that the Federal Government was maliciously blocking these revenue streams by providing another terminal for the biggest airline operators.
Two airlines were controlling between 60 to 70 per cent of the market, and they were initially allowed to operate from the International Airport terminal.
Even, when one of them eventually moved to MMA2, the Federal Government allowed some other airlines to move their operations to the General Aviation Terminal (GAT), which is next door to MMA2, and should have been part of the concessionaire’s terminal under the agreement.
The firm also submitted that the spaces being let out at the GAT should have been part of its revenue, and that the government has also been denying it of revenue from advertisement space, fuel surcharge, and several other sources.
Although the firm claimed that it had never had up to 50 per cent of the revenue it was supposed to be making from the terminal, it had paid over N11billion of its debts to the banks before the debts were transferred to AMCON. The dispute was eventually resolved in favour of Bi-Courtney.
The unanimous decision of the coordinating committee was that the Federal Government was in breach of the agreement; that it should hand over the GAT to Bi-Courtney, and ensure that all domestic flights originate from the concessionaire’s terminal.
Despite the fact that the Federal Government was adequately represented at the arbitration panel, its agencies refused to comply with the resolution. This development made Bi-Courtney to seek redress at the court.
After a review of the case, the court found that all the decisions of the coordinating committee were correct, and it reaffirmed the decision in a 2011 judgement.
The court also asked the government to forward an account of all the revenues it has made, and Bi-Courtney was asked to present an account of all the revenue it has lost as a direct result of the breaches.
Bi-Courtney complied, and the Federal Government did not. The court thereafter awarded N132billion to Bi-Courtney to compensate for the breaches. The conventional expectation is that you do not disobey court judgments and expect to get favourable verdicts from the courts.
Serial disobedience
Therefore, the seeming serial disobedience of the Federal Government on the matter over the years was bound to play against it. It has.
Worse, ignoring two earlier judgments and acting as though it was above the law was bound to haunt the desires and aspirations of AMCON.
No doubt, once the alleged N50billion debt was taken over by AMCON, the management company had every right to go after those it considered liable.
The position of Bi-Courtney has always been that it is not indebted to AMCON or any person claiming through AMCON in any manner whatsoever; and that on the contrary, it is AMCON and the Federal Government of Nigeria that owe it N132billion.
In fact, penultimate weekend, the media was dragged into the matter with each side contending for space. No matter. AMCON has already filed an appeal against the judgment of Justice Buba. AMCON believes it had gotten a raw deal and, therefore, insists that it would do all it can to get a favourable judgment.
Agbakoba, filed a notice of appeal and formulated four grounds before the appellate court. In its reaction to the latest development at a press conference on Monday, Bi-Courtney described the failed attempt by AMCON to disrupt the operations of MMA2 as insensitive, with grave implications for the drive to engender a private sector-led resuscitation of public infrastructure and the nation’s economy.
The move was also described as a deliberate attempt to frustrate investments, commercial development and job creation in Nigeria.
-Culled from: http://www.vanguardngr.com
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