The Supreme Court has affirmed the conviction of the immediate past Director General of the Bureau of Public Enterprises (BPE), Alex Okoh, and his sentence to one month imprisonment for contempt of court.
Okoh, who was appointed BPE’s DG in 2017, was sacked earlier this month by President Bola Tinubu.
A five-member panel of the apex court, in a unanimous judgment on Friday, January 26, held that there was sufficient evidence to prove that the BPE and Okoh flouted the order of the Supreme Court restraining them from selling the Aluminium Smelter Company of Nigeria (ALSCON) Ltd. to any other person or group except the BFI Group Corporation that won the first bid advertised in 2004.
Sometime in 2004, the BPE advertised for expressions of interest from interested bidders for the privatisation of the ALSCON.
At the end of the exercise, BFI Group Corporation was adjudged the preferred bidder, which the BPE communicated to it via a letter dated June 17, 2006, with a demand that it pay 10 percent of the bid price within 15 days of the receipt of the letter, a request BFI Group faulted.
The BFI Group declined to pay, insisting that, by the terms of the memorandum of understanding dated May 20, 2004, which was executed by parties, the only condition was for the preferred bidder to pay 10 percent of the accepted bid price within 15 days from the date of the execution of the Share Purchase Agreement (SPA).
Due to the failure of the BFI Group to pay as directed, the BPE terminated the contract between them and re-offered ALSCON for sale, a decision the BFI Group challenged up to the Supreme Court.
The Supreme Court, in a 2012 judgment held in favour of BFI Group, held that a valid contract of sale existed between BPE and BFI Group.
The Supreme Court, among others, restrained BPE and it’s agents from further offering ALSCON for sale to any other person, person’s, or entity outside BFI Group.
In a bid to execute the Supreme Court judgment, BFI Group filed a judgment enforcement suit before the Federal High Court in Abuja.
In a judgment on September 30, 2014, the Federal High Court in Abuja issued an enforcement order, which BPE objected to and appealed.
The Court of Appeal, in determining the appeal by the BPE, varied the enforcement order issued by the Federal High Court but insisted that the judgment of the Supreme Court must be enforced and directed the BPE to provide the mutually agreed Share Purchase Agreement for execution.
BPE and the BFI Group could not agree on how to execute the SPA, with the BPE objecting to some documents annexed to the SPA, a development the BFI Group found to be disobedience to the judgment of the Supreme Court.
It subsequently initiated contempt proceedings against BPE and its Director General before the Federal High Court in Abuja.
On December 17, 2019, the Federal High Court delivered its judgment on the contempt case, found the BPE and Okoh guilty of contempt of court, and sentenced Okoh to imprisonment for one month until he purges himself of the act of contempt.
The BPE appealed to the Court of Appeal and lost, following which it appealed to the Supreme Court.
It was the appeal by the BPE and Okoh, marked SC/CV/125/2022 that the Supreme decided on Friday against them.
In the lead judgment, Justice Tijjani Abubakar condemned the conduct of the BPE and Okoh in the manner in which they treated the Supreme Court’s judgment.
Justice Abubakar rejected the appellants’ argument that Okoh was not personally served court documents (Forms 48 and 49) in relation to the contempt proceedings.
The judge held that the service of the documents to the Secretary of the BPE was a proper service of the agency’s Director General.
He further held that the decision by the BPE to further re-offer ALSCON for sale after the Supreme Court judgment was a blatant disregard of the apex court’s order and a contemptuous act.
Justice Abubakar said BPE’s invitation to a fresh bid after the apex court’s order “leaves no one in doubt that the appellants indeed flouted the order of the court as handed down in SC/12/2008, particularly the third leg of the order, which perpetually restrained the first appellant (BPE), servants, agents, privies, management, or howsoever called from negotiating the sale, selling, transferring, or otherwise handing over ALSCON to any other person or persons, in violation of the contract between the BPE and the BFI Group.”
Justice Abubakar held that the execution of another SPA on February 17, 2018 at the Ministry of Mines and Steel Development by the BPE with another company was no doubt a blatant disregard of the order of the Supreme Court.
In faulting the claim by the BPE and Okoh that they did not flout the court’s order, Justice Abubakar said their lawyer, Chris Uche (SAN), ought to know that no court makes orders in vain and that orders of court are meant to be obeyed and must be obeyed.
Justice Abubakar added: “It does not lie in the mouth of the appellants to assert that they have complied with the order of this court when it is evident from the record (of the court) that they acted in utter disregard of the order.
“They treated the order of this court with utter disdain and flagrant disrespect. The conduct of the appellants constitutes blatant disrespect, and it is therefore scandalous and shameful.
“It is disgraceful that an agency of government decided to hold the economy of the country hostage. Agencies of government must respect the rules. Nobody in this country is above the law.
“Both the government and the governed are subject to the rule of law.
“The appellants are not at liberty to choose which of the orders of this court to obey and which one to ignore.
“I must say the conduct of the appellants in this case offends the majesty of the law and undermines the dignity of the court.
“By acting in defiance of the order of perpetual injunction handed down by this court, the stage was obviously set for the second appellant’s (Okoh’s) committal to prison,” he said.
Justice Abubakar described the appeal as being without merit and entitled it to be dismissed.
He proceeded to dismiss it, affirmed the judgment of the Court of Appeal delivered on January 21, 2022, upholding Okoh’s conviction for contempt, and awarded a cost of N10 million against the appellants in favour of the respondent (BFI Group).
He ordered that the N10m cost should be paid personally by Okoh, “in addition to going to prison for contempt.”
