The Federal High Court in Lagos has struck out a preliminary objection filed by the Attorney-General of the Federation (AGF) in a suit by Bi-Courtney Services Ltd.
The AGF filed the objection in November 3, 2015, urging the court to make an order dismissing or striking out the suit for being statute barred.
The defendant said Bi-Courtney lacked the locus standi to prevent the Federal Government from rehabilitating or reconstructing the Lagos-Ibadan expressway which is a public infrastructure.
AGF said the plaintiff lacked reasonable cause of action that could sustain the reliefs sought, urging the court to hold that the defendant was not a juristic person.
Ruling on the preliminary objection on Monday, Justice Ibrahim Buba held that the objection lacked merit.
The court held that having carefully read all the processes filed as well as arguments of counsel, it was clear that the action was commenced to protect the “res” or reliefs in a sister case.
The court held that the suit could not be heard without making reference to the pending suit.
Justice Buba, accordingly, dismissed the preliminary objection and held that it was academic.
Bi-Courtney commenced court action in 2012 to redress the Federal Government’s purported termination of the Lagos-Ibadan Expressway project.
It is contending that the purported concession granted to Motorways Limited through the Infrastructure Bank did not go through any due process.
It said it was never advertised in newspapers as the Infrastructure Concession Regulatory Commission Act expressly provides that concessions in Nigeria must be advertised in two national dailies.
The commission, the plaintiff said, must also issue a no-objection approval before the concession is taken to the Federal Executive Council for approval. None of these elementary steps were taken, Bi-Courtney said.
Justice Buba adjourned the case till May 12 for hearing.
A Lagos High Court sitting in Ikeja on Thursday ordered the Economic and Financial Crimes Commission (EFCC) to release the travelling documents of the Chairman, Bi-Courtney Highway Services, Wale Babalakin.
Justice Adeniyi Onigbanjo gave the order in a ruling on application by the Bi-Courtney boss seeking permission to travel to South Africa to treat hypertension and other unspecified ailments.
The judge however ordered that Mr Babalakin must return the passports to the custody of the EFCC before 27 March a date already set aside by the court to hear the applications by the Bi-Courtney Boss seeking to quash the charges against him.
The Counsel to the EFCC, Rotimi Jacobs, did not oppose the application for the release of the travel document; he merely urged the court to ensure that the defendant was not being allowed to travel to a country where he could easily abscond from trial.
Mr Babalakin and his co-defendants are facing charges of fraudulently aiding convicted former Delta State Governor, James Ibori to transfer N4.7 billion to Mauritius between May and December 2006.
Facing the 27 counts along with Mr Babalakin are Alex Okoh and three firms, Stabilini Visioni Limited, Bi-Courtney Limited and Renix Nigeria Limited.
The second defendant, Mr Okoh is also said to have a similar application pending before the court for the release of his passports to travel abroad. It’s not certain yet when he will be arguing his application.
The Chairman of Bi-Courtney Nigeria Limited, Wale Babalakin has reacted to media reports alleging that the Asset Management Company of Nigeria (AMCON) has taken over its office building at 43A Afribank street, Victoria Island over a N13.5 billion debt.
Mr Babalakin, who is a Senior Advocate of Nigeria (SAN), at a press briefing on Monday said his company, Bi-Courtney is not indebted to AMCON or any Federal Agency, neither was its office property mortgaged to any bank.
He exhibited a court order dated the 5 April 2012 which shows that Bi-Courtney has a judgment credit of N132 billion in its favour, with the court directing that any debts to the federal government should be deducted from the amount.
“We are massively in credit; we do not owe any dime, yet we are being portrayed as debtors,” he said.
The Economic and Financial Crimes Commission (EFCC) on Thursday arraigned the embattled Chairman of Bi-Courtney, Wale Babalakin along with 4 others before a Lagos High court in connection with criminal conspiracy and money laundering to the tune of N4.7 billion on behalf of the convicted former Delta State governor, James Ibori.
The EFCC had on Wednesday issued a statement that “the businessman, who was supposed to report to the commission today (Wednesday) preparatory to his arraignment on a 27-count criminal charge before Justice Adeniyi Onigbanjo of the Lagos High Court tomorrow, January 17, 2013 failed to do so, and has gone underground.”
Based on the non-appearance of the businessman the EFCC’s office, the agency had declared Mr Babalakin wanted.
However, the Bi-Courtney boss had faulted the action of the EFCC saying “I have been in regular touch with the EFCC and have reported to the commission every other day.”
When the charges were read to him, Mr Babalakin pleaded not guilty to all 27 of them.
After his Arraignment, his lawyer moved an application that he be admitted on bail on grounds of self-recognisance. The Counsel to the EFCC did not oppose the application but asked that the court to give Mr Babalakin such conditions that will ensure that he continues to show up for trial
Justice Adeniyi Onigbanjo thereafter admitted the Bi-Courtney boss to bail on self-recognizance. The only condition attached is that he must deposit his passport with the EFCC who must not release it without express permission of the court.
Mr Babalakin was charged before Justice Onigbanjo on a 27-count of conspiracy, retention of proceeds of a criminal conduct and corruptly conferring benefit on account of a public action.
The offences, according to the EFCC are contrary to Section 17(a) of the Economic and Financial Crimes Commission (Establishment) Act 2004.
Efforts to arraign the defendants were stalled on November 29 and December 12 last year after Mr Babalakin’s counsel told the court that he had been admitted at the Lagos University Teaching Hospital (LUTH), Idi-Araba, Lagos.
Mr Babalakin was arraigned alongside Alex Okoh, Stabilini Visioni Limited, Bi-Courtney Limited and Renix Nigeria Limited for fraudulently transferring N4.7 billion on behalf of Mr Ibori.
The embattled Chairman of Bi-Courtney Highway Services Limited, Wale Babalakin on Friday failed in a second attempt to stop the Economic and Financial Crimes Commission (EFCC) from prosecuting him on money laundering charges.
A Federal High Court sitting in Lagos and presided by Justice Ibrahim Buba dismissed Mr Babalakin’s suit seeking, among other reliefs, an order barring the police and the State Security Service from arresting him in connection with charges of money laundering.
Justice Buba said it was wrong for the applicant to approach the court to enforce his fundamental human right when there was a pending criminal charge against him at the state high court. He said the personal liberty of an individual was not absolute. He said it will not augur well for the peace and progress of the society if any person with a criminal charge in a court approaches another to enforce his fundamental human right; nothing that ”nobody is above the law, no matter the person’s position or status”.
He said Mr Babalakin as a Senior Advocate of Nigeria should not be afraid to face the court and, therefore, dismissed his application as lacking in merit.
The Counsel to the EFCC, Rotimi Jacobs had told the court that the commission is vested with the power to investigate, arrest and prosecute persons for financial crimes. He also told the court that Mr Babalakin did not abide by the terms of the administrative bail granted him by the anti-graft agency.
On the issue of Mr Babalakin’s ill-health which his counsel, Wale Akoni made reference to, Mr Rotimi said that there was nothing before the court on the current state of the suspect’s health.
“It is not a case of denial of fundamental human rights but a case of non-compliance to enjoy that right. The suit is intended to gag the EFCC so that they will not take him to court”, Mr Rotimi said.
Before today’s ruling Justice Buba had on Monday December 17, 2012 refused to grant an ex-parte order restraining the EFCC from arresting or detaining Mr Babalakin without hearing from the respondents. Rather, the judge ordered the suspect to serve the respondents to enable them respond to the motion on notice.
Another court had on December 15, 2012 dismissed a similar application by Mr Babalakin for an order of prohibition against the EFCC and the Attorney General of Federation from arraigning him before the Lagos High Court on the grounds that the application was defective as it failed to comply with Order 35 Rule 4 of the Federal High Court Civil Procedure Rules, which require the applicant to depose to an affidavit after serving the court papers on the parties in the suit.
The judge held that failure to depose to such affidavit and file same before the court had robbed the court of its jurisdiction to entertain the matter.
The court vacated the order it earlier granted the applicant permitting him to institute the prohibition suit against the EFCC and subsequently awarded N5, 000 cost against the applicant.
Mr Babalakin, alongside Alex Okoh, Stabilini Visioni Limited, Bi-Courtney Limited and Renix Nigeria Limited are scheduled to appear before an Ikeja High Court on January 17, 2013 to take his plea on a 27-count charge of offences bordering on money laundering preferred against him by the EFCC. The suspects allegedly transferred various sums of money on behalf of the former governor of Delta State, James Ibori, through third parties to some foreign accounts under the guise of purchasing a Challenger Jet Aircraft.
They were to be arraigned before Justice Adeniyi Onigbanjo of the Lagos High Court Ikeja on November 29, 2012. The arraignment was stalled as Mr Babalakin failed to show up, claiming sudden illness that necessitated his hospitalization at the Lagos University Teaching Hospital.
While his lawyers were pleading with Justice Onigbanjo to adjourn the arraignment to enable Mr Babalakin to recover from his illness, he was attempting to stop his trial before Justice Mohammed Idris of the Federal High Court.
The lead defence counsel to Mr Babalakin, Ebun Sofunde has withdrawn from the case, citing personal reasons.
A Federal High Court sitting in Lagos on Thursday struck out an application filed by the Managing Director of Bi-Courtney, Wale Babalakin, seeking an order of certiorari and prohibition against his arraignment by the Economic and Financial Crimes Commission (EFCC) on money laundering charges.
Ruling on the application by Mr Babalakin for an order of prohibition against the EFCC and the Attorney General of Federation from arraigning him before the Lagos High Court, Justice Idris Mohammed held that the application was defective as the applicant did not file service and serve same properly.
He therefore dismissed the case for non-compliance with court rules and awarded the sum of N5000 against the applicant.
Justice Idris equally dismissed the preliminary objection by the EFCC that the court lacked jurisdiction to entertain the applicant’s suit and that the application is incompetent and an abuse of court process.
Justice Idris had on November 29, 2012 granted leave to Mr Babalakin to apply for an order of prohibition to review the legality and constitutionality of the 27 count criminal charges preferred against him at the Lagos High Court.
The order was granted the same day the businessman was to be docked alongside four others before Justice Adeniyi Onigbanjo of a Lagos State High Court, Ikeja for fraudulently transferring various sums of money on behalf of the former governor of Delta State, James Ibori, through third parties to some foreign accounts under the guise of purchasing a Challenger Jet Aircraft.
He failed to show up, claiming a sudden illness that necessitated his hospitalization at the Lagos University Teaching Hospital. However, the EFCC through its lawyer, Rotimi Jacobs, challenged the ruling.
At the last adjourned date, December 13, Mr Jacobs had urged the court to strike out the application for want of jurisdiction and lack of competence.
He argued that the court lacks the jurisdiction to entertain the application, and that the application was incompetent and amount to abuse of court process as the reliefs sought were not available in law.
He added that information before any court is for that court to deal with and that the Federal High Court cannot exercise powers over the State High Court. “What they are doing here is a gagging suit and I urged the court to dismiss it.
But Wale Akoni, counsel to Mr Babalakin told the court that an issue of interpretation had arisen regarding the leave of prohibition granted the applicant as the respondent had taken the view that there was no order of stay against them.
He further told the court that despite the order of the court, the EFCC had continued to lay siege to the hospital where the defendant is receiving treatment for undisclosed ailment.
He therefore urged the court to reiterate and reinforce with some measure of clarity the effect of the ruling against the respondent.
He said they were equally in court because the commission has no power to prosecute his client at the Lagos State high Court as section 19(1) of the EFCC Act is unconstitutional.
He said that there was no valid statutory power available to the respondent to file charges against the applicant.
He further added that the Commission ought to report to the AGF but that the Commission has not done that.
However, Mr Jacobs told the court that the matter before it was hearing of the substantive suit and the motion of preliminary objection. He said the order of court was unambiguous and needed no further interpretation.
The EFCC lawyer said the matter before the court was simple and that it was whether the respondent has power to initiate criminal proceedings and whether they followed the right procedures.
He said the powers conferred on the AGF or the AG of the State to initial and prosecute is not exclusive. “The EFCC can initiate criminal proceedings against anybody”, he said.
The Federal Government yesterday (Monday) confirmed that it will re-introduce toll gates on Lagos-Ibadan expressway.
The Minister of Works, Mr. Mike Onolemenmen disclosed this during the tour of North/South road from Lagos-Ibadan road, explaining that government toll taking was necessary to maintain the road.
He said the funds realised from it would be used to “sustain and maintain this road so that it would not go back to the sorry state we met it and similar others across the federation”.
Onolemenmen shortly after touring 52km Oyo-Ogbomoso road which is the section 11 of Ibadan-Ilorin road being handled by Reynolds Construction Company (RCC) said toll gates would be introduced as soon as the on-going reconstruction and expansion works are completed by both the RCC and Julius Berger.
He made more clarifications on the termination of the contract for Lagos-Ibadan road earlier concessioned to Bi-Courtney Highway Construction Services, saying the company failed to meet up with the financial involvement needed to fix the road in the required time.
“I assure you that by the first quarter of next year, you will see a major difference on Lagos-Ibadan expressway,” he said.
The site engineer of RCC, Yehoda Leve assured that the road would be completed by December 2013.
Work has also commenced on the Julius Berger construction end of the road.
A Financial analyst, Pascal Odibo on Thursday called on the Federal government to sack every public service officials involved in awarding the contract for the repair of the Lagos-Ibadan expressway to Bi-Courtney.
Mr Odibo, who was a guest on Channels Television’s breakfast programme, Sunrise Daily, said the government did not have to wait for three years before terminating the contract if those in public offices had a mechanism to conduct proper evaluation of the contract.
“You don’t even in the first instance award the contract to an efficient institution,” he said.
“Public service persons and personnel must be held responsible for the offices and the responsibilities that they occupy. It is not sufficient to be an assistant director; it is not sufficient to be a director in any ministry, department and agency of government and things fail and all you just do is to say you terminate a contract.
“Who approved the PPP (Public Private Partnership)? Who bided with Bi-Courtney? If Bi-Courtney did not do well why did it take three years to get to this position? And if indeed Bi-Courtney have not done the work, who is the second best bidder?” he asked.
Following the issues surrounding the Federal Government’s cancellation of the concession of the Lagos-Ibadan expressway to Bi-Courtney Consortium, a former Vice President of the Nigerian Bar Association, Ikeazor Akaraiwe, Thursday accused the government of lack of ‘due diligence’ in the contract.
Speaking as a guest on Channels Television’s programme, Sunrise Daily, the legal practitioner said the Federal Government failed to carry out sufficient investigations to ascertain why Bi-Courtney fell short of the terms of the concession contract.
“The government is being made to look like a juvenile; today saying one thing and tomorrow doing another thing,” he said.
A security consultant and public affairs analyst, Deinde Ariyo on Tuesday described the long awaited termination of the Lagos-Ibadan expressway by the federal government as “a reflection of the low thinking of the government”
Mr Ariyo who was speaking as a guest on Sunrise Daily, one of the flagship programmes of Channels Television, also praised President Goodluck Jonathan’s maturity during the recently conducted media chat.
“Generally, the chat revealed a more matured president away from the last chat he had with the media,” he said.
He said after having a firsthand experience of how impassable the road had become, he wasn’t surprised that the contract with Bi-Courtney was terminated and re-awarded to Julius Berger and RCC.
He further revealed how long it usually takes him to travel to Abeokuta, Ogun state capital, on the expressway when it was in good shape and when it attained its present state.
“I live in Lagos but I go to Abeokuta more than three times a week, so I particularly pass that road and before it got to this present state, my house in Lagos to Abeokuta will usually take me 45 minutes but lately it takes me three to four hours’’.
Mr Ariyo said at a point the road “looked irredeemable and as for me it is a reflection of a low thinking of government”
The Federal Government on Monday terminated the concession of the Lagos-Ibadan expressway granted to Bi-Courtney consortium on May 2009.
The termination of the concession contract follows the promise made by President Goodluck Jonathan during Sunday’s media chat where he promised to ‘fix the Lagos-Ibadan expressway’.
“As a responsible government, I don’t think we can allow Nigerians to continue to suffer. All of us in government, we feel pained that the country is held ransom because of a transaction that probably was not consummated properly because of some kind of issues. But we cannot continue like this, we will intervene on that road,” President Jonathan had said.
Announcing the end of the contract between Bi-Courtney and the government at a press conference in Abuja, the Minister of Works, Mike Onolememen said the termination of the concession is consequent on the serial breaches of the concession agreement by Bi-Courtney consortium and especially the failure of the company to reach financial close as provided for in the agreement.
The Minister said: “The Federal Government today terminated the concession of the Lagos-Ibadan expressway granted to Bi-Courtney Consortium on 8th May, 2009.
“The termination of the concession agreement by Bi-Courtney consortium and especially the failure of the company to reach financial close as provided for in the agreement.
“Due to the senseless carnages on this important expressway which is part of Arterial Route A1, the Federal Government has also decided to embark on the emergency reconstruction of the expressway.
“Consequently, the Federal ministry of Works has engaged the services of Julius Berger Plc and R.C.C Nigeria Limited to commence work immediately on the reconstruction of the expressway.
“While Julius Berger would handle handle section 1: from Lagos to Shagamu interchange, RCC Nigeria Limited will be responsible for section II: from Shagamu to Ibadan.
“The Federal Government wishes to assure that while it will continue to uphold the sanctity of contracts entered into by the Federal Government, it will not shy away from implementing provisions of the contract agreement dealing with non-performance on the part of the contracting party.”
On the legal implication of terminating the contract he said, “The legal implications of this termination have been carefully considered by both the Federal Ministry of Works and indeed the Federal Government. If you recall, we have been on this issue for quiet sometime now and we have meticulously followed the concession agreement, the provision of relevant clauses of the agreement.
“We have complied fully with the provisions of this agreement. We have had cause even in the past to write the concessioneer to detail the breaches which it had committed in this agreement in this particular transaction and we have also followed the minimum and maximum number of days the contractor was expected to remedy the situation but failing which the Federal Government had no alternative but to take this course of action”.
“In terms of percentage payment so far, this is a concessioned project. In other words it is different from the normal EPC contracts, so the FG in a sense did not make any direct payment to Bi-Courteny in this particular transaction. Bi-Courteny was supposed to raise, he would have been able to raise the fund from the private sector and apply it to the construction of this expressway and toll it for as many as 25 years, to recoup his investment and this has not happened, and that is why today the concession has been terminated.
“For your information, under this concession, the construction period is supposed to last for four years and the four years will come to a close in about six months’ time and right now there is nothing on ground to suggest that the company is capable.”
On whether it was a mistake to have given the concession to Bi-Courteny he said, “I would not want to say that it was a mistake, because though I was not in the office as at that time, perhaps at that time they had the most responsible bids, the details is best known to the then minister of works and his team that handled the project. But again it is not out of place to give Nigerian companies opportunities to handle projects of this nature. This is our country, whoever has the ability and the capacity to do projects of this nature we believe should be encouraged”.
On the percentage of work done on the road he said, “I will leave that for those who use the road. As far as we are concerned the terms of work has not been complied with”.
The Federal High Court in Lagos has been asked to revoke the concession agreement between the Federal Government and Bi-Courtney Highway Services Limited on the reconstruction of the Lagos-Ibadan Expressway.
The suit was filed on Tuesday, by two individuals, Mr Olawale Fapohunda and Mr Richard Akinola, along with their group, Legal Resources Consortium.
The plaintiff contended that incessant accidents and destruction of lives and properties on the road “are direct consequences of Bi-Courtney’s negligence and failure to execute the contract” awarded since 2009.
In the originating summons filed by their counsel, Norrison Quakers, the lawyer set five questions for the court’s determination and sought five declarative reliefs.
Jointly sued by the plaintiffs are the Federal Republic of Nigeria, the Minister of Works, Attorney-General of the Federation, the Federal Road Maintenance Agency and Bi-Courtney.
The plaintiffs contend that the court reserves the power to revoke the concession “for non-performance, occasioning gridlock and incessant destruction of lives and properties along the expressway.”
They are also seeking an order of mandatory injunction, compelling the government, the Minister of Works, and the Federal Road Maintenance Agency (FERMA) to “immediately repair and maintain the Lagos-Ibadan expressway sequel to their obligations, legal and statutory duties so as to stem or curb the gridlock and destruction of lives and properties on the expressway.”
The 105-kilometre highway was conceded to Bi-Courtney in a public private partnership policy of late President Umaru Musau Yar’Adua, in May 2009.
The road, stretching from Lagos to Ibadan, the Oyo state capital, through Ogun state, has become a nightmare for its users as tankers loaded with petrol frequently trip on the pot-hole ridden road, causing huge carnage, claiming dozens of lives.
Since signing the agreement, Bi-Courtney has failed to construct the road which is one of the nation’s most important highway, linking the Southern region of the country to the east.
Regular obstruction of traffic is also a common feature on the narrow expressway, with several religious organisations, setting up their camps by the expressway.