CUSTOMSGATE: $3 BILLION PROJECT RUNS INTO DISPUTE
Despite a restraining court order and informed legal opinions, the Federal Executive Council, FEC, Wednesday, ratified the re-award of concession on the implementation of the Nigeria Customs Service Modernisation Project. The E-Customs project is worth $3.1bn.
Rising from the FEC meeting presided over by Vice President Yemi Osinbajo, the Minister of State, Finance, Budget and National Planning, Clem Agba said council approved a memo appointing Messrs Bergman Security Consultant and Supplies Limited as the project sponsor, Africa Finance Corporation, as lead financier while Huawei Technologies will be retained as lead technical service provider.
The Minister said he was unaware of a pending court order on the matter although two Senior Advocates of Nigeria had written the Minister of Justice and the Minister of Finance on the need to obey a court order in a suit FHC/ABJ/CS/848/2022 filed by the original concessionaire, Messrs E-Customs HC Project.
The senior lawyers, Messrs Ahmed Raji and Dipo Okpeseyi in separate letters last week warned the AGF; the Minister of Finance, Budget and National Planning and Secretary to the Government of the Federation of “underhand efforts being made to obtain the Federal Executive Council’s approval and or ratification of the re-award of the E-Customs Modernisation Project.”
In a follow-up letter to the Vice President, Prof Yemi Osinbajo, Ahmed Raji and Co. called attention to the pendency of a suit on the subject matter at the Federal High Court, Abuja, and claimed that the Ministry of Finance, at the goading of the Comptroller General, Nigeria Customs Service, has perfected plans to present a memo for the Council’s ratification of a new concessionaire in a brazen disregard for the rule of law.
Specifically, the lawyers had asked the Federal Executive Council to suspend, discontinue or discountenance any request to initiate deliberations or a fresh request for approval for the award of the said contract to any other bidder aside the original approval granted by FEC to Messrs E- Customs Project Limited.
“It is in spite of all these that the Nigeria Customs Service is pushing to have the FEC grant another approval with the sole purpose to embarrass, over reach and undermine the earlier approval and ratification by the FEC and prejudice the matter pending in court,” said Mr Okpeseyi in his letter to the Secretary to the Government of the Federation dated April 11, 2023. The same letter was copied to the AGF, the Minister of Finance and the CG, NCS.
In the affidavit deposed at the court by Alhaji Umar Tanko-Kuta, representative of the plaintiffs in the suit, he had averred that FEC on 2 September, 2020, approved the appointment of Messrs E-Customs HC Project Ltd as the concessionaire for the project on a 20-year concession agreement.
He also averred that a dispute arose when the CG, Nigeria Customs Service “sought to impose a shareholding and governance structure on the concessionaire in a manner inconsistent with the negotiated terms and the full business case approved by the Infrastructure Concession Regulatory Commission.”
The Federal High Court in Abuja had in June, 2022, restrained the Federal Government from enforcing or giving effect to the agreement on the Customs Modernisation Project otherwise known as E- Customs allegedly executed by its agents on May 30, 2022 which substituted the rightful concessionaire with another company- Trade Modernization Project Limited- registered at the Corporate Affairs Commission on 6 April, 2022.
On 20 February, 2023, Justice Inyang Ekwo asked all parties to preserve the res of the matter and do nothing to interfere with the proceedings.
The agents who allegedly executed the disputed concession agreement are the Nigeria Customs Service, Trade Modernization Project Limited, Huawei Technologies Company Nigeria Limited and Africa Finance Corporation.
The court also issued an order of interim injunction against the Federal Government or its agents, acting through the Federal Executive Council, from retrospectively ratifying the decision to concession the Customs Modernisation Project also known as e- customs project to Trade Modernization Project Limited, Huawei Technologies Company Limited and Africa Finance Corporation.
The court also specified that the order shall last till the hearing and the determination of the suit brought against the Federal Government and other parties by two aggrieved companies.
The case was on Wednesday adjourned to 8 June, 2023, for definite hearing.
Recall that the plaintiffs, E-customs HC Project Limited and Bionica Technologies (West Africa) Limited jointly challenged the alleged unlawful and fraudulent replacement of their names in the concession agreement earlier approval by President Muhammadu Buhari and ratified by FEC on 2 September, 2020.
Counsel to the two aggrieved companies, Anone Usman of Ahmed Raji Chambers had on behalf of the two plaintiffs argued an ex-parte application praying the Federal High Court for the interim orders against the defendants to protect the interest of his clients.
Justice Ekwo while ruling on the ex-parte application granted the prayers of the plaintiffs having placed sufficient evidence of interest in the concession project.
Defendants in the suit are the Federal Government of Nigeria; Attorney-General of the Federation; Minister of Finance, Budget and National Planning; the Infrastructure Regulatory Concession Commission; Nigeria Customs Service; Trade Modernization Project Limited; Huawei Technologies Limited; Africa Finance Corporation and Bergman Security Consultant and Supplies Limited being 1st to 9th defendants respectively.
The two plaintiffs had in their statement of claim narrated how they proposed to carry out customs modernization project through several government officials for the benefit of the Nigeria Customs Service.
They claimed that after series of meetings and negotiation with some of the defendants, President Muhammadu Buhari granted anticipated approval for the e- custom Project
They averred that on September 2, 2020, the Minister of Finance presented a memo number EC2020/153 to the Federal Executive Council, FEC, the highest decision-making body of the Federal Government, and secured approval for the two plaintiffs to be granted the concession.
Plaintiffs further claimed that trouble started when the Nigeria Customs Service unilaterally reviewed the FEC approval and imposed other conditions among which are shareholding formula and governance structure.
They claimed that the power of the NCS to unilaterally review FEC approval was protested and that the Comptroller General of Customs stood his ground. Plaintiff asserted that to their surprise they read in the news that the Nigeria Customs Service had executed a concession agreement with Trade Modernization Project on May 30, 2022, Huawei Technologies Company and African Finance Corporation in total breach of the Concession Agreement vetted by the AGF in conjunction with the Minister of Finance.
They averred that Trade Modernization Project was incorporated April, 2022 at the Corporate Affairs Commission with one Alhaji Saleh Amodu, a close friend of the Comptroller General of Customs as the chairman.
Plaintiff asserted that the new company having been just incorporated in April 2022 could not have obtained and did not obtain the full business case compliance certificate from the Infrastructure Regulatory Concession Commission and the approval of the Federal Executive Council to carry out the e- customs project.
They therefore asked the court to make a declaration that the decisions of the Federal Government and its agents to enter into concession agreement with Trade Modernization Project, Huawei Technologies Company and African Finance Corporation in respect of the e-customs project is illegal, null and void, having been made in gross violation of Section 2 of the Infrastructure Concession Regulatory Commission Act 2005.
They also asked the court to declare that E-customs HC Project Limited is the approved and rightful concessionaire for the e-customs project as approved by the Federal Executive Council at its meeting of September 2, 2020 and in line with Section 2 of the Infrastructure Concession Regulatory Act.
They also applied for an order of the court directing the Federal Government through the AGF, Finance Minister, ICRC and NCS to consummate the E- customs project with the 1st plaintiff as approved by FEC in September 2020.