After yet another victorious outing against the Asset Management Corporation of Nigeria at the Court of Appeal in Lagos on March 25, 2015, Bi-Courtney Limited has explained why AMCON and the Federal Government must pay N132 billion for damages as earlier ordered by a court.
Demanding AMCON’s compliance with the order of Justice G.K. Olotu of the Federal High Court, Abuja on April 5, 2012, in suit number: FHC/ABJ/CS/50/09, in a statement on Thursday, the Chairman of Bi-Courtney Limited, Dr. Wale Babalakin, explained how AMCON had fraudulently attempted to take over the assets of his companies, how the agency has refused to obey a court order to pay N132 billion for damages and how it had wasted tax payers’ money on propaganda by deliberately misinforming the public about the facts of the issues.
Paragraphs three and four of the order say: “An order directing the Defendant/Respondent (Attorney General of the Federation), being the Chief Law Officer and legal representative of the Federal Government of Nigeria and all its agents/agencies, including the government institutions and bodies responsible for the payment of the sum due to the Applicant, to mandatorily compel the said government institutions and bodies to immediately comply with the judgment of this Honourable Court by making without any further delay the payment of N132,540,580,304.00 to the Plaintiff/Applicant (Bi-Courtney) in fulfilment of the aforesaid order of this Honourable Court.
“An order directing the Defendant/Respondent, being the Chief Law Officer and legal representative of the Federal Government of Nigeria to set off from the above-mentioned of N132, 540, 580, 304.00, any claims agreed with the Plaintiff/Applicant to be due from the Plaintiff/Applicant to any agency of the Federal Government of Nigeria, including but not limited to the Asset Management Corporation of Nigeria (AMCON).”
The statement says: “This order is yet to be upturned by either a court of coordinate jurisdiction or a superior court till date. It is amazing that AMCON which is a creation of the Federal Government has refused to acknowledge its principals instrument as a means of repayment to it.”
According to Babalakin, Bi-Courtney had signed a Concession Agreement with the Federal Government on the second terminal of Murtala Muhammed Airport, but over 60 per cent of the firm’s revenue was taken by the Federal Government through its refusal to honour the 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 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.
The firm also submitted to an arbitration body that the Federal Government was maliciously blocking its revenue streams by providing another terminal for the biggest airline operators.
Bi-Courtney added 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 Bi-Courtney 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.
AMCON had bought the debt from the banks at N19billion, and that was wrong. Most of the debts of AMCON were bought at discounted value, but that of MMA2 was bought at 100 per cent. No discount.
As it is known, debts are only bought at 100 per cent if the collateral is good. The development has proven that the collateral of MMA2 is good, as well as the structure and financing.
When the MMA2 dispute was resolved in favour of Bi-Courtney by the coordinating committee, the unanimous decision 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.
Six appeals were filed against this judgement – two by the unions, one by Federal Airports Authority of Nigeria, one by Ojemaie Holdings, the handlers of Arik, one by Arik, and one by the Attorney General of the Federation. All the appeals were dismissed in a spate of four years.
Despite the court judgement and the submissions of the arbitration panel, the Federal Government went ahead to develop the GAT in further breach of the agreement.
Bi-Courtney had borrowed N20 billion from the banks and paid back the sum of N12 billion.
According to the banks, the firm still owe N19 billion.
If the Agreement had been honoured by the Federal Government, the Concessionaire would have paid the debt and also refunded the substantial equity to the equity owner.
Babalakin said: “We challenged the issues in Court and the Court at all levels ruled in our favour. Damages of over N132 billion was awarded to Bi-Courtney against the Federal Government. The Federal Government has not paid these damages.”
On the Federal Secretariat, he said: “We bought a building from the Federal Government. We were redeveloping this building and had pre-sold the flats in the redevelopment. Under the Agreement, the Federal Government was responsible for obtaining a No Objection clearance from the Lagos State Government if it was required. The Lagos State Government stopped us from building the flats. The consequence of this stoppage was a direct responsibility of the Federal Government. The Government is yet to pay for its failure to discharge its responsibility.
“Ingeniously, we decided to keep it as offices to avoid the restriction and Interference of the Lagos State Government. We know very well that we do not require the consent of the Government of Lagos State in law to keep the premises as an office complex, yet AMCON insisted on this condition.”
On his Roygate Properties, Babalakin said: “We bought a Company preparatory to the execution of the Lagos – Ibadan Expressway project. We borrowed the sum of N9 billion and paid back about N5 billion in two years. We still owe N12billion according to the bank. The perception of the Clients of the Company that AMCON had taken over the Company actually ruined the Company. From an average turnover of N7billion, before the involvement of AMCON, the turnover has now dropped to about N2billion because the clients believe that AMCON is involved with the Company. The subsidiaries of the Company are refusing to recognize the rights of the majority shareholders on the ground that AMCON is involved with the Company. One of these subsidiary companies has already written to AMCON to this effect.
“AMCON then approached the Court ex-parte to take over the premises known as No. 43A. Afribank Street, Victoria Island, Lagos, whose tenants or occupants includes a law firm. This building was never mortgaged to any bank. AMCON never found any title documents of the building with Guaranty Trust Bank, who assigned the debt to AMCON. The issue of whether GTB had any Interest in the property was already in various Courts. Without disclosing these issues to Court, AMCON sought to take over the building.”
Babalakin, who hailed the Judiciary for upholding the truth, noted that the Nigerian system is obviously seeking to kill a man of vision and courage instead of promoting him.
In October, 2014, Justice Ibrahim Buba had in a ruling, vacated an order granting leave to AMCON to take over assets of companies belonging to Dr. Babalakin.
Justice Buba vacated the order which was earlier granted by another judge of the court, Justice Okon Abang, on the ground that AMCON fraudulently obtained it.
The Court of Appeal in a unanimous decision on March 25, 2015, upheld the decision of the lower court adding that the circumstances under which AMCON obtained the ex- parte order against Bi-Courtney amounted to an abuse of court process.
In the judgment read by the presiding Justice, Justice Sidi Bage, the Court held that the ex- parte order was obtained in the face of subsisting order of Justice A.M. Liman delivered on November 4, 2011 restraining the Federal Government and its agencies from taking any steps to take over Bi-Courtney group. The court held that the actions of AMCON through its counsel, Agbakoba, were abuse of the process of the court.