BUREAU OF PUBLIC ENTERPRISES v. BFIG GROUP CORPORATION
(2019)LCN/12511(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of January, 2019
CA/A/637/2014
RATIO
COURT AND PROCEDURE: CONSEQUENTIAL ORDER
“Truly, every Court is endowed with the power to make consequential orders. Iguh, JSC in Awoniyi & Ors. v. Reg Trustees of the Rosicrucian Order Amorc (Nigeria) (2000) 10 NWLR (Pt. 676) 522 held that: ‘The purpose of a consequential order is to give effect to the decision or judgment of the Court but not by granting an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit nor was it in the contemplation of the parties that such relief would be the subject matter of a formal executory judgment or order against either side to the dispute. A consequential order may also not be properly made to give to a party, an entitlement to a relief he has not established in his favour. See Akinbobola v. Plisson Fisko Nigeria Ltd and Ors. (1991) 1 NWLR (Pt. 167) 270 at 288; Obayagbona v. Obazee (1972) 5 SC 247; Liman v. Alhaji Mohammed (1999) 9 NWLR (Pt. 617) 116.'” PER STEPHEN JONAH ADAH, J.C.A.
EVIDENCE: WHETHER ORAL EVIDENCE IS REQUIRED TO RESOLVE CONFLICT IN AFFIDAVIT
“The law is very clear that it is not in all cases that oral evidence is required to resolve any conflict in affidavit. Where there are relevant documentary evidence supporting the facts before the Court, the Court does not require oral evidence to resolve conflicts. See the cases of SANUSI BROTHERS (NIG.) LTD V. COTTA COMMERCIO EXPORTACAO E. IMPORTACAO S.A. (2000) 11 NWLR (PT 679) 566. YAKUBU & ANOR. V. NITEL & ANOR (2005) LPELR 11909, EIMSKIP Ltd v. EXQUISITE INDUSTRIES (NIG.) LTD. (2003) LPELR 1058 (SC), EJEZIE & ANOR v. ANUWU & ORS. (2008) LPELR 1063 (SC), NWOSU v. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (Pt 735) 688.” PER STEPHEN JONAH ADAH, J.C.A.
JUSTICES
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
BUREAU OF PUBLIC ENTERPRISES Appellant(s)
AND
BFIG GROUP CORPORATION Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of the Federal High Court, Abuja Division in Suit No: FHC/ABJ/CS/901/2013, delivered on 30th of September, 2014 by Abdu Kafarati, J. (now C.J).
The parties in the appeal had fought their claims to the Supreme Court and their matter was finally decided by the Supreme Court on Friday 5th day of July, 2012. The Respondent who was the applicant at the trial Court thereafter filed a motion seeking the enforcement of the judgment of the Supreme Court at the trial Court.
The origin of the dispute between the parties stemmed from the privatization of the Aluminum Smelter Company of Nigeria Plc (ALSCON), by the Federal Government of Nigeria through the appellant.
The facts generated from the record before us can be rendered thus. The appellant, the Bureau of Public Enterprises (BPE), advertised for expression of interest from bidders interested in the privatization of ALSCON. The interested bidders required to complete and submit a prescribed Request for Proposal which stated that bidders would be selected on the basis of an evaluation and selection procedure approved by the National Council on Privatization (NCP).
BFIG and United Company RUSAL (“UC RUSAL’) competed and submitted the prescribed proposals. Davson Holdings Limited was the investment vehicle which UC RUSAL proposed to invest in ALSCON.
At the financial bid opening held on 14 June 2004, PBE disqualified Dayson/UC RUSAL’s conditional bid of US $210 Million., BFIG’s bid of US $410 Million was declared to be the preferred bid.
By a letter dated 17 June 2004, BPE stated that BFIG ‘must pay 10% of the bid price within 15 working days of receipt of this letter’. This was a unilateral variation of the terms agreed to at the TBC, that 10% of the bid price of ALSCON would be paid within 15 working days of the signing of the SPA.
On 8 July 2004, prior to the signing of the SPA, BPE unilaterally terminated its agreement with BFIG citing BFIG’s inability to pay the initial bid price within 15 working days of receipt of the letter dated 17 June 2004, as the reason for the termination.
Aggrieved by BPE’s action, BFIG commenced proceedings against BPE before the Abuja Division of the Federal High Court vide Suit No: FHC/ABJ/CS/563/2004. In the said suit, BFIG sought to enforce the binding agreement between the parties by, amongst other reliefs, an order of specific performance. The trial Court dismissed BFIG’s claim. The Court concluded that there was no binding agreement between the parties capable of legal enforcement.
BFIG’s appeal to the Court of Appeal vide Appeal No: CA/A/261/2005 was also dismissed. The Court of Appeal affirmed the judgment of the trial Court. This prompted a further appeal to the Supreme Court vide Appeal No:SC. 12/2008.
In its final judgment delivered on 6 July 2012, the Supreme Court found that there was a binding contract between the parties and that BPE’s reason for “abrogating the contract was most unjustified”. The Supreme Court found that BPE’s “unilateral insertion of the offensive clause without mutual agreement of [BFIG] amounted to a breach of the contract between the parties”.
The Supreme Court allowed the appeal and ordered inter alia, as follows:
i.) An Order of specific performance is hereby decreed directing the Defendant/Respondent to provide the mutually agreed Share Purchase Agreement for execution by the parties to enable the Plaintiff/Appellant pay the agreed 10% of the accepted bid price of US $410 million (i.e the sum of US $41 million) within 15 working days from the date of the execution of the Share Purchase Agreement in accordance with the agreement dated 20/5/2004 and the 90% balance of bid price shall be paid within 90 calendar days.
ii) An Order for the Defendant/Respondent to accept payment of 10% of the bid price from the Plaintiff/Appellant within 15 days from the date of signing the Share Purchase Agreement (SPA).
iii) An Order of Perpetual Injunction restraining the Defendant/Respondent, its servants, agent, privies, management or howsoever called from inviting any further bidding for the sale and acquisition of ALSCON in violation of the contract between the Plaintiff/Appellant and Defendant/Respondent and/or from negotiating to sell, selling transferring or otherwise handing over the Aluminum Smelter Company of Nigeria ALSCON to any person or persons in violation of the contract between the Plaintiff/Appellant and the Defendant/Respondent.
With the victory at the Supreme Court, the Respondent filed an enforcement application before the Court below seeking the following orders:-
i. An Order directing the Respondent to fully enforce, fulfill and give effect to the meaning and intendment of the Judgment of the Supreme Court of Nigeria in Appeal No. SC.12/2008 dated 6 July 2012 by signing and executing forthwith “the mutually agreed Share Purchase Agreement (SPA)” hereto annexed and marked as Exhibit F.
ii. A further Order consequent to the Judgment of the Supreme Court in Appeal No. SC.12/2008 dated 6 July 2012 compelling and mandating the Respondent to forthwith. take full control and possession of ALSCON and prepare same for handover/transfer to the Applicant, subject to the payment by the Applicant of the consideration provided for in the SPA (Exhibit F).
iii. And for such further and or other orders as the Honourable Court may deem fit to make in the circumstances.
The applicant’s grounds for this application were generously worded as follows:
i. In Suit No. FHC/ABJ/CS/583/2004 BFI Group Corporation v. Bureau of Public Enterprises, the Applicant herein prayed the Honourable Court inter alia to grant an Order of specific performance mandating the Bureau of Public Enterprises (The Respondents) to sell the enterprises known as Aluminum Smelter Company of Nigeria (ALSCON) to the Applicant in accordant with the terms of the Understandings/Agreements for the sale of ALSCON dated 20 May 2004.
ii. By final judgment of the Supreme Court of Nigeria dated 6 July 2012, in Appeal No. SC/12/2008, the Appeal of the Applicant was allowed; and in place of the judgment of the Courts below, the Supreme Court of Nigeria entered judgment in favour of the Applicant herein in terms decreeing “an order of specific performance is hereby decreed directing the Defendant/Respondent to provide the mutually agreed Share Purchase Agreement for execution by the parties to enable the Plaintiff/Appellant pay the agreed 10% of the accepted bid price of US $410 million (i.e. the sum of US $ 41 million) within 15 working days from the date of the execution of the Share Purchase Agreement in accordance with the agreement dated 20/5/2004 and the 90% balance of bid shall be paid within 90 calendar days.”
iii. The cause of action for suit No. FHC/ABJ/CS/583/2004 included the refusal of the BPE to allow the Applicant to sign/execute the modified Share Purchase Agreement (SPA) negotiated by the parties for the sale of ALSCON to the Applicant.
iv. As at the date of the bid for the acquisition of ALSCON by the Appellant/Applicant in May 2004 the Asset Value of its Audited Account was ALSCON as per N127,141 (N127.1 Billion) or US $ 1.1 Billion.
v. As per the ALSCON audited account approved and filed by the Respondent, the Asset Value of ALSCON, as at financial year ending 31 December 2011, reduced/depreciated to the sum of N14,574,664,000 (N14.57 Billion) or the sum of US$ 89.99 Million.
vi. Pursuant to the judgment of the Supreme Court aforesaid, the parties have met, negotiated and agreed on the SPA (Exhibit F hereto attached) to be signed in compliance with the Order of specific performance decreed by the Supreme Court.
vii. The Respondent refuses to sign and execute the mutually agreed/negotiating SPA and insists that unless the Appellant/Applicant signs a unilateral SPA drafted by the Respondent, the Respondent will cancel the contract decreed to be enforced specifically by the parties as per the judgment of the Supreme Court.
viii. Unless by a further Order of this Honourable Court, the Respondent will continue to refuse/neglect to enforce the final judgment of the Supreme Court and further frustrate the meaning/intendment of the Judgment of the Supreme Court by refusing to sing and execute the mutually agreed/negotiated SPA for the acquisition of ALSCON by the Applicant.
ix. It is in the interest of justice to grant this application and ensure that the Order of Perpetual Injunction made by the Supreme Court in its Judgment dated 6 July 2012 is not rendered ineffective and impotent.
The Court below heard this application and granted it. The Court then ordered as follows: –
1. An order is hereby granted directing the Respondent to fully enforce and give effect to the meaning and intendment of the judgment of the Supreme Court dated 6th day of July, 2012 by signing and executing forthwith the mutually agreed Share Purchase Agreement (SPA) annexed to the Applicant’s motion as Exhibit F with a purchase price of US four hundred and ten million dollars ($410 million).
2. It is further ordered that the Respondent should accept ten percent (10%) of the purchase price or US forty-one million dollars ($41 million) to be paid within fifteen (15) working days of this enforcement order or not later than October 24, 2014. The balance of US three hundred and sixty-nine million dollars (369 million) to be paid as per Audited Financial Statement as at the date of this judgment being 30th day of September, 2014 to be conducted by KPMG.
3. A further order consequent upon the judgment of the Supreme Court dated 6th day of July, 2012 compelling and mandating the Respondent to forthwith take full control and possession of ALSCON from anybody including UC Rusal et al and prepared same for handover/transfer to the Applicant subject to the payment by the Applicant as order (sic) in 2 above granted.
4. To further give effect to the judgment of the Supreme Court, it is ordered by way of consequential order as follows:
i. That the Applicant, its employees and agents shall forthwith have full, uninterrupted and unrestricted access to ALSCON to conduct a firsthand assessment of the business affairs of the Company including engineering, technical, financial, accounting, facility environment, personnel, dredging and legal records pursuant to the decisions of the NCP as approved and directed in exhibits G and G1 attached to this motion.
ii. The Inspector General of Police and other security agencies should ensure that these orders are fully enforced.
Aggrieved by this decision the appellant filed the extant appeal on 23rd October, 2014.
The record of appeal was transmitted on 5/11/2014. The appellant filed the appellant’s brief of argument on 19/12/2014. The Respondent filed its amended Respondent’s brief of argument on 15/2/2018 which was deemed properly filed on 13/3/2018. The appellant’s reply brief was filed on 22/3/2018. These briefs were respectively adopted by the parties at the hearing of this appeal along with their reliefs.
The appellant raised eight issues for determination while the respondent distilled two issues for determination. The eight issues raised by the appellant are worded as follows:-
1. Whether the trial Court has or lacks the jurisdiction to entertain the Respondent’s Suit for enforcement of a Judgment where the subject-matter of enforcement is outside the scope and territory of the Court below. (Grounds 1 and 3).
2. Whether learned trial judge was right or wrong in concluding that Exhibit F is the agreed Share Purchase Agreement without following appropriate procedure for resolving conflicts in the Affidavit evidence placed before the Court by the parties (Ground 11).
3. Whether learned trial judge was right or wrong in his decision that Exhibit F attached to the Respondent’s Originating Motion is the mutually agreed share purchase agreement which formed the basis of the Supreme Court’s Judgment and upon which order of specific performance was made by the Supreme Court. (Ground 4 and 8).
4. Whether learned trial judge was right or wrong in his decision to enter judgment in favour of the Appellant who had evinced a clear intention to depart from/abandon the judgment of the Supreme Court adjudging the sum of USD410 Million as the consideration for the purchase of ALSCON. (Ground 9).
5. Whether learned trial judge was right or wrong to have varied the judgment of the Supreme Court by giving an order enabling the Respondent, its servants and agents to have full uninterrupted access to ALSCON in order to conduct first hand assessment of the affairs of ALSCON. (Ground 5).
6. Whether learned trial judge in the process of enforcing Supreme Court Judgment is at liberty to vary by way of additions to the judgment of the apex Court with respect to terms and conditions, the mode of payment, quantum of consideration and basis of calculation of the consideration payable for the purchase of ALSCON.
7. Whether the suit before learned trial judge ought not to have been dismissed on ground of abuse of Court processes. (Ground 7).
8. Whether learned trial judge was right in making the order for the enforcement of judgment of the Court by the Inspector-General of Police. (Ground 10).
The two issues raised by the respondent are worded as follows: –
1. Whether the learned trial Court has the jurisdiction to entertain and determine the Enforcement Application seeking to enforce the Final Judgment of the Supreme Court in SC.12/2008 BFIGroup Corporation v. BPE dated 12 July 2012.
2. Did the learned trial Court give effect to or vary the judgment of the Supreme Court in Appeal No. Sc.12/2008 between BFI Group Corporation v. Bureau of Public Enterprises. (Grounds 4, 5 6, 8 and 9).
A look at the issues framed by the parties will show that the eight issues framed by the appellant catered for all the grounds of the complaint of the appellant in the notice of appeal. These eight issues to be addressed will also cover the two issues framed by the Respondent. I therefore set down the eight issues framed by the appellant for consideration in this appeal. For ease of consideration and alignment of the issues framed, I shall consider issue one solely, consider issues 2, 3 and 4 together; then consider issue 7. Thereafter consider issues 5, 6 and 8 together. I start with issues one.
Issue One:
This issue is whether the Court below lacked jurisdiction to entertain the respondent’s suit for enforcement of a judgment where the subject matter of enforcement is outside the scope and territory of the Court below.
The parties through their respective counsel who are Senior Advocates anchored their core argument on the operation of Section 287(1) of the 1999 Constitution of Nigeria which deals with the enforcement of the decisions of the Supreme Court of Nigeria.
It is rather surprising or curious with due respect that the parties went into laborious and unnecessary arguments on issue of subject matter jurisdiction of the Court below. It must be noted here that the claim of the parties had run its full course in the Court. The decision of the apex Court is final. No Court again is competent to entertain any argument on any respect of the claim, other than to enforce the judgment of the Supreme Court. This matter was originally heard by the Court below in Suit No FHC/ABJ/CS/563/2004. It is the same Federal High Court Abuja that the Respondent took the decision of the Supreme Court for enforcement. How then can any issue of subject matter or territorial jurisdiction be raised by:the parties in this circumstance.
The constitution of the Federal Republic of Nigeria made the Nigeria Supreme Court the apex Court with finality of decisions. In the case of Prince Yahaya Adigun & Ors v. The Attorney General of Oyo State & Ors. (No. 2). 1987 LPELR 40648 (SC), the Supreme Court per Eso, JSC held as follows:-
“Let me however start with Constitutional provisions. S. 213 (1) of the 1979 Constitution provides- “The Supreme Court shall have jurisdiction to the exclusion of any other Court of law in Nigeria to hear and determine appeals from the Court of Appeal”. Section 215 of the same Constitution provides “without prejudice to the powers of the President or the Governor of a State with respect to prerogative of mercy no appeal shall be to any other body or person from the determination of the Supreme Court” with these provisions therefore, as they are, subject to the inherent jurisdiction of the court under the Common Law or as conferred by the Constitution – the decision of the Supreme Court is final. Final in the sense or real finality in so far as the particular case before that Court is concerned. It is final forever, except there is legislation to the contrary, and it has to be a legislation ad horninem. The Supreme Court, and it is only the Supreme Court, may depart from the principles laid down in their decision in the case in future cases, but that does not alter the rights privileges or detriment to the parties concerned, arising from the original case. Such is the Constitutional power of the Supreme Court, that learned counsel probably rightly, wondered if the Justices of the Supreme Court were supermen. Let me answer the question.
The Supreme Court is, under the Constitution, a super Court deliberately meant and made to be so by the organic law, and the Justice of that Court, now only to that extent of their decision are super men, Meant to be so and so made by the Constitution. Of course, neither the Court nor the Justices are meant to, or could even be infallible. But the price paid for finality in litigation is that the notion or the dread of infallibility has been sacrificed by the Constitution on the altar of finality. The society can never be stable if there is no such finality in litigation. It is, I very respectfully hold, desirable to have such finality, notwithstanding the price paid for it. As it is usually put, there must be end to litigation…”
In the same vein, the Supreme Court in the case of Senator Abubakar Sadiq Yardua & Ors. v. Senator Abdu Umar Yandoma & Ors. (2014) LPELR ? 24217 (SC) held that:
“…by virtue of Section 287 (1) of the 1999 Constitution as amended, all person and authorities including INEC and the two Courts below, being subordinate to the Supreme Court, are duty bound to enforce the decision of the apex Court. Indeed by the very section, the apex Court itself is duty bound to ensure the enforcement of its own decision.”
It is therefore, certain that under Section 287 (1) of the 1999 Constitution, this Court and all Courts inferior to the Supreme Court are not only bound by the decision of the Supreme Court, they are under a clear obligation to enforce every decision of the Supreme Court. Section 287 (1) of the Constitution emphatically provides that the decisions of the Supreme Court SHALL be enforced in any part of the Federation by all authorities and persons and by Court with subordinate jurisdiction to that of the Supreme Court. There is certainly no disputing the fact that the lower Court had jurisdiction to entertain, the application for enforcement of the judgment of the Supreme Court. The Court below in its judgment held at pages 728 – 729 of the record that:
“The provisions of the above quoted status confer jurisdiction on any Court of record subordinate to the Supreme Court to enforce the Judgment of the Supreme Court regardless of the subject-matter. The subject-matter of the case before this Honourable Court of the 6th day of July, 2012 in Appeal No. SC.12/2008 and not enforcement of any contract”.
This position adopted by the learned judge at the Court below is undoubtedly the position of the law on this issue. Issue one is therefore resolved against the appellant.
Issues Two, Three and Four:
These issues deal with whether the Court below was right in concluding that Exhibit F is the agreed share purchase agreement without resolving conflicts in the affidavit evidence before the Court, and whether the Court was wrong in his decision to enter judgment in favour of the appellant.
The appellant in its brief canvassed that Exhibit F which the Court below accepted as the share purchase agreement could not have been the one contemplated by the Supreme Court. That there was no consensus among the parties as to what constitutes the share purchase agreement. That the Court below ought to have resolved the contradiction in the affidavit on that issue before picking on Exhibit F as the share purchase agreement. The appellant further pointed out that Exhibit F fixed consideration payable for the purchase of ALSCON which was different from the amount specified by the Supreme Court. He cited Exhibit F at page 44 of the record. He concluded that the Court below lacked jurisdiction to rewrite the contract for the parties. That the overall decision of the Court below was to make a new contract for the parties. He urged the Court to resolve these issues in favour of the appellant.
The Respondent in the amended Respondent’s Brief contended that the Supreme Court’s decree of specific performance cannot be read in isolation of the undertakings and agreements reached at the Technical Bids Conference (TBC) of May 20, 2014. That the contention of the Appellant that the mutually agreed SPA is shown in Exhibit BPEI at pages 413 – 427 of the record of appeal is untenable. He canvassed that where a transaction is to be deducted from a series or chain of documents, the Court should read the documents together in order to discover the real intention of the parties. The learned senior counsel for the Respondent extensively contended that from the community reading of the documents it will be obvious that neither the Appellant nor Mr. Ujomu was unaware that forwarding the 58 page SPA (Exhibit) to the Respondent for execution was in compliance with the subsisting Supreme Court judgment. That the pertinent question is whether the parties or the Appellant could deviate from the accepted bid prices of $410 million taking into cognizance the depreciation in the value of ALSCON. The issue raised is whether the Appellant is entitled to take into account the current value of ALSCON in stating/fixing the price payable in Exhibit F forwarded to the Respondent by e-mail dated 8th October, 2012. That the appellant could surrender or compromise the benefits of the Supreme Court judgment. He relied on the cases of Abey & Ors. v. Alex & 2 Ors. (1999) 12 SC (Pt. 11) 71, 79 and Ariori v. Elemo (1983) SCNLR 1, 13.
In this case, there is no doubt that the issue is about the enforcement of the judgment of the Supreme Court. The law is well settled that enforcement of a valid judgment of a Court of law must address exactly what the judgment being enforced decided. The exact terms of the judgment cannot be varied and must be enforced in exactly the same tenor as was determined. See the cases of Igbokoyi & Ors. v. Lawal (2013) LPELR 22006 (CA) and Umar v. Manager (2018) LPELR ? 44526 (CA). Enforcement of the decision of the Court in the first place becomes an issue where there is no voluntary compliance with the orders made by the Supreme Court by the parties. Where parties take their cause before the Court and the Court enters judgment for one of the parties, the successful party in order to reap the fruits of his judgment goes out to enforce the judgment of the Court.
In the instant case, the decision of the Supreme Court is the one sought to be enforced. The constitution of the Federal Republic of Nigeria 1999 as amended has by Section 287 (1) thereof provided that:
“The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons by Courts with subordinate jurisdiction to that of the Supreme Court.”
When this provision is read together with Section 235 of the Constitution, it is essentially straightforward to understand the fact that the Supreme Court being the final Court in the land, all its decisions are to be enforced by all authorities, persons and subordinate Courts all over the Federation of Nigeria.
All Courts have jurisdiction to enforce the decision of the Supreme Court. Any application for enforcement of the decision such as is in this instant case must be strictly restricted to the issue of enforcement and it cannot be an occasion for the parties to relaunch the claim that had already been decided by the Court. It also does not admit of any consideration of issues not related to the issue of enforcement of the judgment handed down by the Court. Let me also underline here, the fact that once any Court has heard a case and handed down a decision, the Court or judge is functus officio and the parties are estopped from re-opening the case to amend or add to anything decided by the Court. If the parties after the judgment discovered that they cannot fully take the benefit of the decision without further going back to their table of agreement and re-adjust their respective positions a new consideration sets in. In that wise, the issue will not be enforcement of the judgment of the Court. The parties would have to enter a further agreement to add to or alter their previous arrangement. It could even require a further step or an informal gentleman agreement.
This is only when they can alter previous agreements. If that step is not taken and the parties file an application for enforcement of the judgment of the Court the implication is that the parties are comfortable and are in agreement with that decision. In which case, the executing Court will go straight to the enforcement of the decision of the Court as it is. The executing Court even if it is the Court that decided the case will not be competent to add or subtract from the decision earlier entered. In the instant case, the decision is that of the Supreme Court, the apex Court of the land and it is to be enforced. The parties are not in Court to review their pre-judgment agreement so they cannot engage the Court in that respect.
In the instant case, the crux of the decision of the Supreme Court is as seen at page 18 of the record of appeal in the enrolled order as follows:-
(i) An Order of specific performance is hereby decreed directing the Defendant/Respondent to provide the mutually agreed Share Purchase Agreement for execution by the parties to enable the Plaintiff/Appellant pay the agreed 10% of the accepted bid price of US $410 million (i.e the sum of US $41 million) within 15 working days from the date of the execution of the Share Purchase Agreement in accordance with the agreement dated 2015/2004 and the 90% balance of bid price shall be paid within 90 calendar days.
(ii) An Order for the Defendant/Respondent to accept payment of 10% of the bid price from the Plaintiff/Appellant within 15 days from the date of signing the Share Purchase Agreement (SPA).
The term and tenor of this order is very lucid and clear. The order is hinged on the parties’ agreement of 20/5/2004 to the effect that the Defendant/Respondent shall provide the mutually agreed share purchase agreement for execution by the parties to enable the Plaintiff/Appellant who is the respondent in the instant appeal pay the agreed 10% of the accepted bid price of US $410 million which is the sum of US $41 million within 15 working days from the date of such execution of the share purchase agreement in accordance with the agreement dated 20/5/2004 and the 90% balance of bid Price to be paid within 90 days calendar days. From this order, there is nothing relating to any new bid or review bid or any virement of the agreed bid.
The Supreme Court from the order had automatically linked the order to the settled bid price and the ratio of payment. The parties and the enforcement Court have no competence or jurisdiction to vire from this in any enforcement process of the said order.
The Respondent in the instant appeal is relying on Exhibit F at pages 32 to 90 of the Record of Appeal. This Exhibit F has introduced the following issues:
“Purchase Price” means (subject to Section 2 hereof) payable in two installments in accordance with the terms and conditions of this Agreement.
“Purchase Price” including cost of Dredging” means consideration for the Shares equal to US $250,000,000 (two hundred and fifty million US dollars) agreed by the parties, provided that the BPE has an obligation and is responsible to finance the Dredging directly.
“Purchase Price excluding Cost of Dredging” means consideration for the Shares equal to US $130,000,000 (one hundred and thirty million US dollars) agreed by the parties, provided that the BPE has no obligation to finance the Dredging directly.
“Purchase Price – Total Equity” means consideration for the Shares equal to an amount that equals the Total Equity valuation of the Company at the end of the 2012 fiscal year, December 31, 2012, as determined by the independent financial audit, conducted by the company’s auditors in accordance with international standards on Auditing.
This means that instead of the earlier pre-judgment agreement of the parties of the purchase price of USD $410 million, the Share purchase agreement in Exhibit F is talking of US $250 Million. There is absolutely nothing in the judgment sought to be enforced that talks of US $250 million or cost of Dredging of US $130 million.
This Exhibit F was the SPA sent to the respondent by the appellant. The appellant did not deny sending the SPA to the respondent in this appeal. The only thing appellant said was that it was sent in error to the respondent. It was later withdrawn by the appellant to avoid it clashing or running foul of the Supreme Court order.
The respondent in their affidavit in support of the application before the Court below had deposed at paragraph 6,7, 8, 9,10,19, 25, 26, 27,28 and 29 as follows:-
“6. By letter dated 7 September 2012, the Respondent informed us that BFI Group Corporation has been ‘reinstated as the preferred bidder of the ALSCON Financial Bid opening held on 14 June 2014.
Copy of the letter dated 7 September 2012 is hereto annexed and marked as Exhibit D.
7. By email message dated and sent on 8 October 2012, the respondent’s Chief Legal Counsel; Joseph Ujomu (using email address oolalekan-odusanya@bpeng.org) forwarded the 58-page mutually agreed SPA for execution by us.
Copy of the Email sent by the respondent on 8 October 2012 is hereto annexed as Exhibit E.
8. By letter dated 11 October 2012, our United States Legal Counsel wrote to the respondent’s Chief Legal Counsel acknowledging the receipt of the draft SPA.
Copy of the letter dated 11 October 2012 to which is attached a letter dated 6 February 2012 by the Steel and Engineering Workers Union of Nigeria is hereto annexed and marked as Exhibit El.
9. Copy of the 58 page SPA (now signed by us) which was sent to us, by the respondent as stated in paragraph 8 above is hereto annexed and marked as Exhibit F.
10. By letter dated 22 November 2012, the respondent confirmed that the only remaining matter in the transfer of ALSCON to us was to conduct a “fact finding visit to the plant to assess the current situation in ALSCON to enable us fill the existing gaps in the SPA and finalize it for execution”.
Copy of the letter dated 22 November 2012 is hereto annexed and marked as Exhibit F1.
19. I have examined Exhibit F above against the background of the Terms of Understandings/Agreements dated 20th May 2004 (Exhibit 1) and I am aware that save for the recognition of the Judgment of the Supreme Court in Exhibit F, Exhibit F represents the terms of the mutually negotiated/agreed SPA, ordered to be provided to us for execution by the Judgment of the Supreme Court.
25. By letter dated 29 January 2013, the respondent wrote to us claiming that the NCP “at its meeting held on 22/01/2013 directed BPE to forward the Share Purchase Agreement dated 20/5/2004 to you for execution.”
Copy of the letter dated 29 January 2013 and the 16 page SPA is hereto annexed and marked as Exhibit L1 and M.
26. I am aware that SPA forwarded to us by the respondent vide the letter dated 29th January 2013 on the directive of the NCP is not the mutually agreed SPA ordered by the Supreme Court to be executed by the parties in compliance with the Order of specific performance decreed by the Supreme Court.
27. I know as a fact that Exhibit M (the 16 page SPA) which the respondent wants the Applicant to execute by the letter dated 29 January 2013 is commercially unreasonable and in defiance of the Supreme Court Judgment for the following:
(i) Gas supply agreement as negotiated in 2004 and affirmed by the Supreme Court was unilaterally removed entirely.
(ii) BPE warranties and representations in respect of the audited accounts are to the effect that not material adverse change occurred in the assets of ALSCON whereas KPMG Audit Report shows a value depreciation from $1.1Billion in 2004 to $89.9 Million as at December 31st, 2011 with 2012 and 2013 audited accounts yet to be released which will show further depreciation.
(iii) The Applicant (Purchaser) is forced to undertake responsibility for any pre-existing and unresolved liabilities with respect to employees’ pension and gratuities which is estimated to be about N4 Billion.
(iv) The Appellant/Applicant (Purchaser) is forced to acknowledge that it has conducted its due diligence investigation of the business affairs of the company and satisfied itself as to the status of the company whereas there is no such due diligence conducted due to the respondent’s frustration and refusal.
(v) The Applicant (Purchaser) is forced to agree for a change in venue of arbitration from London to Abuja contrary to 2004 agreement upheld by the Supreme Court.
28. By letter dated 1 February 2013, the respondent insisted that “if by the 13th day of February, 2013, we do not receive your client’s bank draft in the sum of US$41 Million representing 10% of the bid price of US $410 Million; this transaction becomes null and void.”
29. By further letter 22 February 2013, the respondent gave a “Final Demand Notice that if by March 18, 2013, we do not receive your client’s bank draft in the sum of US$41 Million, this transaction becomes a nullity.”
The respondent who opposed this application with counter affidavit at the Court below said at paragraphs 13, 14, 15, 18 25, 29, 33 34 – 35 as follows:-
13. Following the Judgment of the Supreme Court, the Respondent took several steps to comply fully with the clear terms of the said Judgment.
14. In compliance with the aforementioned Judgment, the respondent re-instated the appellant as the preferred bidder of the ALSCON financial bid of 14th June, 2004.
15. The respondent communicated the Applicant’s re-instatement vide (Exhibit E attached to the Applicant’s Supporting Affidavit).
18. On the 8th October, 2012, I caused a draft of a Share Purchase Agreement (Exhibit F attached to the Applicant’s Supporting Affidavit) to be forwarded to the Applicant’s Counsel for perusal and necessary comments.
19. At the time the draft Agreement was forwarded to the Applicant, I did not have the benefit of thoroughly digesting the order of specific performance decreed by the Supreme Court in its Judgment, which was based solely on Exhibit BPE 1 (the 2004 Share Purchase Agreement).
20. I subsequently re-read the whole Judgment of the Supreme Court and understood that the Court mandated the respondent to provide the mutually agreed Share Purchase Agreement (Exhibit 1) for execution by the parties.
21. I also subsequently sought the legal advice of the legal committee on National Council on Privatization on the type of Share Purchase Agreement to prepare for execution of parties.
22. The legal committee’s advice tallied-with my latter view that the Share Purchase Agreement must in substance be in conformity with the 20/5/2004 Agreement of the parties.
23. The draft Agreement which I forwarded to the Applicant was materially different from the Agreement which formed the basis of the decree of specific performance contained in the aforementioned Judgment of the Supreme Court.
24. On realizing the error, the respondent caused a letter dated 29th January, 2013 (Exhibit L1 attached to the Applicant’s Supporting Affidavit) to be written to the Applicant pointing out the error and that the Share Purchase Agreement must be in accordance with the 20/5/2004 Share Purchase Agreement as decreed by the Supreme Court.
25. A revised Share Purchase Agreement (Exhibit M attached to the Applicant’s Supporting Affidavit) which in form and substance is in conformity with Exhibit BPE 1 (the 20/05/2004 Share Purchase Agreement) was immediately forwarded to the Applicant for execution.
29. In response to the Applicant’s Attorneys Letter, the respondent by a letter dated 1st February, 2013 reiterated the fact that, the only Agreement contemplated by the Supreme Court’s Judgment was the 20/5/2004 Share Purchase Agreement 9Exhibit BPE 1) and the Applicant was requested to disregard any other Agreement. The letter is hereto attached and marked Exhibit BPE 4.
33. The said Exhibit F is materially and substantially different from Exhibit BPE 1 (the 20/05/2004 Agreement).
34. The purchase consideration was changed from $410,000,000.00 (Four Hundred and Ten Million United States Dollars) in Exhibit BPE 1 TO $250,000,000.00 (Two Hundred and Fifty Million United Stated Dollars) in Exhibit F contrary to the unequivocal decision of this Supreme Court.
35. By Exhibit BPE 1, it was agreed that the Applicant shall be solely responsible for the dredging of lmo River Channel. However, at page 13 of Exhibit F the Applicant sought to exclude dredging of the Imo River Channel from the consideration in the manner highlighted below:
a. If the respondent agrees to bear the cost of dredging of Imo River Channel, the consideration will be $250,000 000.00.
b. If the Applicant bears the cost of dredging of the Imo River Channel, consideration will be $130,000,000.00.”
In the instant appeal what is very clear is the fact that the appellant is the one given the responsibility of providing the mutually agreed Share Purchase Agreement for execution by the parties. The language of the order of the Supreme Court does not leave anyone in doubt as to the fact that the order was anchored on “the mutually Agreed Share Purchase Agreement.” The order was not made in anticipation of any future agreement. The word “the” is a definite article. It signifies something specific. That is why it is always placed before a noun. When the order referred to “the mutually agreed share purchase agreement,” that agreement is one in existence and known to the parties. The appellant was the one who forwarded Exhibit. F to the respondent on 8th October 2012.
From the recital clause of Exhibit F (especially paragraphs N, O, P) there is a reference to the Supreme Court decision which means that the Agreement was post judgment of the Supreme Court. From the facts before the Court, the only agreement which was coterminous with the Technical Bids conference in 2004 is the one presented as Exhibit BPE 1.
It is therefore very clear without doubt that “the mutually agreed share purchase agreement of the parties is not Exhibit “F” but Exhibit BPE 1. The appellant had explained in the counter affidavit that Exhibit F was in error and could not tally with the Supreme Court’s decision so he reverted back to Exhibit BPE 1 and this was the essence of the letter of the appellant on February 1, 2013 as found in page 454 of the record of appeal Vol. 2
That letter reads as follows:-
THE PRESIDENCY
Bureau of Public Enterprises
11, Osun Crescent, Maitama District.
P.M.B. 442, Garki – Abuja, Nigeria
Tel: (234-9) 460400, 6724122
Website: http//www.bpeng.org
February 1, 2013.
Jimmie L. Williams
Burma Brown (a professional law corporation) California Office
1901 Harrison Street, 14th Floor Oakland LCA
94612-3501
Dear Sir,
RE: OFFER TO PURCHASE 77.5% SHARES IN ALUMUNIUM SHELTER COMPANY OF NIGERIA (ALSCON)
We are in receipt of your letter dated 31st January 2013 in respect of ALSCON. It is important to note that the only Agreement that is allowed for the transaction is the Agreement dated 20/5/2004 referred to in the Supreme Court Judgment SC.12/2008, which we forwarded to your client, BFIG. Your client was declared winner at the auction sale conducted on the 14th June, 2004 and the offer approved by NCP. The Supreme Court in their Judgment of July 6, 2012 at page 57 ordered that:
“An order of specific performance is hereby decreed mandating the respondent to provide the mutually agreed share purchase agreement for execution by the parties to enable the plaintiff pay the agreed 10% of the accepted bid price of US $410 Million (i.e the sum of US 41 million) within 15 working days from the date of the execution of the Share Purchase Agreement in accordance with agreement dated 20/5/2004 and the 90% balance of bid price shall be paid within 90 calendar days.”
Please disregard any other agreement as it is not contemplated. To do so is to be contemptuous of the Judgment of the Supreme Court of Nigeria. When you read the Judgment this process is driven by the orders and directives of the Supreme Court of Nigeria.
If by the 13th day of February, 2013 we do not receive your client’s bank draft in the sum of US$41 million representing 10% of the bid price of US$410 million, this transaction becomes null and void.
Thank you.
Yours faithfully,
Benjamin E. Dikki
Ag. Director-General.
The respondent in their further affidavit denied that the mutually agreed share purchase agreement was Exhibit BPE 1 but Exhibit F. This cannot be right. The order was on the appellant to provide the mutually agreed SPA for execution. It was not for the parties to arrange and provide a mutually agreed SPA. It follows therefore that the only mutually agreed share purchase agreement referred to in the specific order of the Supreme Court is Exhibit BPE 1. This is the only one the Court below ought to have acted upon in its judgment. The learned senior counsel for the respondent was talking of contradiction in affidavit and the resolution of it. The law is very clear that it is not in all cases that oral evidence is required to resolve any conflict in affidavit. Where there are relevant documentary evidence supporting the facts before the Court, the Court does not require oral evidence to resolve conflicts. See the cases of SANUSI BROTHERS (NIG.) LTD V. COTTA COMMERCIO EXPORTACAO E. IMPORTACAO S.A. (2000) 11 NWLR (PT 679) 566. YAKUBU & ANOR. V. NITEL & ANOR (2005) LPELR 11909, EIMSKIP Ltd v. EXQUISITE INDUSTRIES (NIG.) LTD. (2003) LPELR 1058 (SC), EJEZIE & ANOR v. ANUWU & ORS. (2008) LPELR 1063 (SC), NWOSU v. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (Pt 735) 688.
?In the instant case Exhibit BPE2 at pages 428 to 430 of the record of appeal Vol. 2 was addressed by the appellant to Dr. Reuben Jaja, the Chief Operating Officer of the Respondent. Dr. Jaja underneath. Exhibit BPE 2 affirm the contents of the agreements and understanding reached at the technical bid conference of May 20, 2004. Exhibit BPE 1 which is at pages 413 to 427 of the record of appeal Vol. 2 shows that it was a 2004 Agreement. A look at the provision of this agreement shows that paragraphs 2.0-2.1 and 3.0 to 3.1 provide as follows:-
“2.0 SALE AND PURCHASE OF SHARES
2.1 Subject to the terms of this Agreement, BPE on the authority of NCP and on behalf of the FGN hereby sells the Share to the Purchaser, and the Purchaser hereby purchases the Shares from BPE free and clear of all liens, all legal and beneficial right. Title and interest in and to the 10,550,747,700 (ten billion, five hundred and fifty million, seven hundred and forty seven thousand, seven hundred) ordinary shares representing 77.5% of the authorized and issued share capital of the company. The parties hereto agree that consequent upon the approval of the financial bid by the NCP, the preferred bidder shall pay to the BPE Ten (10) percent of the bid amount within Fifteen (15) working days from June 17, 2004 and the balance of Ninety (90) percent shall be paid on or before Ninety (90) working days from June 17. 2004, which shall be non-refundable unless as provided in this Agreement.
3.0 PURCHASE CONSIDERATION
3.1 The consideration for the purchase of the Shares shall be the sum of USD 410,000,000.00 (Four Hundred and Ten Million US Dollars).
This with all clarity accords with the Supreme Court decision in this case. From the foregoing therefore Exhibit BPE 1 is the mutually agreed share purchase agreement and not the share purchase agreement Exhibit F relied upon by the respondent and the Court below.
From the foregoing therefore, it is now very clear that these issues must be resolved in favour of the appellant. They are accordingly so resolved.
Issue Seven:
This issue is whether the suit before the Court below ought not to have been dismissed.
The learned senior counsel for the appellant canvassed on this issue that the appellant had vide Suit No FCT/HC/CV/522/2011 BFI GROUP CORP V. UC RUSAL sought to recover damages for alleged induced breach of contract, tortuous interference of the bid between the appellant and the respondent and criminal devaluation of ALSCON. That the respondent’s claim in the guise of enforcement seeks to reduce the consideration ordered by the Supreme Court from 410 Million to USD 250 Million. That the respondent’s claim seeks to mitigate the alleged devaluation of ALSCON as a result of UC Rusal’s use and occupation of same. That the statement of claim in the said suit was attached as an Exhibit to the Notice of Preliminary Objection. He contended that the objective of both suits is to mitigate the devaluation of ALSCON (if any) as a result of UC Rusal’s use and occupation of ALSCON. That the respondent is forum shopping to obtain double compensation. He submitted that the respondent’s attempt to obtain compensation from the appellant and Rusal UC on the same issue of devaluation is an abuse of Court process. He relied on the case of Owena Mass Transportation Company Ltd v. Imafidon (2011) LPELR 4810 (CA) on the attitude of our Courts to double compensation.
He submitted that the learned trial judge erred by failing to dismiss the respondent’s suit on the ground that the cause of action and issues in the Suit No FCT/HC/CV/522/2011 differed from the respondent’s suit. The circumstances amounting to abuse of Court process are not closed. He urged the Court to hold respondent’s act forum shopping as an abuse of the process of the judicial system. He cited the cases of Dingyadi v. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 1; Re-Benkay Nigeria Ltd v. Cadbury Nigeria Ltd (2012) LPELR-7820 (SC).
The learned senior counsel for the respondent in his own brief of argument argued that it is not an abuse of Court’s process to pursue a legitimate cause of action. That abuse of process is a term generally applied to a proceeding which is wanting in bona fide and is frivolous, vexatious and oppressive.
He relied on the case of Amaefule v. The State (1988) 2 NWLR (Pt. 75) 156; Etti v. Tinubu (2011) LPELR ? 4737 and Umeh v. Iwu (2007) 6 NWLR (Pt. 1030) 416. He urged the Court to hold that there is no abuse or any issue of double compensation in this case.
In law, no one is allowed to abuse the process of the Court. It is also trite that a party should not be offered a judicial platform for double compensation and when an issue of abuse of process or double compensation is raised, the Court must treat it with dispatch. It is significant though to say that it is not everything that appears irregular or have the semblance of another that is, capable of causing abuse of the process or double compensation.
These two principles of law have their different and separate manifestations. Oguntade JSC in Kopek Construction Ltd v. Ekisola (2010) 3 NWLR (Pt. 1182) 618 held that in the award of damages a Court must be mindful of the necessity to ensure that a party is not doubly compensated for the same injury. In the same vein Rhodes-Vivour, JSC in Mabamije v. Otto (2016) 13 NWLR (Pt. 1529) 171 held that equity would not allow the appellant to be compensated twice. If allowed, there would no longer be justice between the parties. Fraud would be enthroned, and transparency and good faith jettisoned, and that would be bad for the justice system. I must frankly say that that is a feature that can manifest more in claim of damages than in claims of a general nature.
In the instant case, the parties are not pursuing any double claim of damages for any breach or injury. This contest of double compensation therefore is of no consequence in this proceeding. Moreover, the case pending before the FCT High Court is different in content and complexion from what is before us in this appeal. The case on appeal is for enforcement of a decision of the Supreme Court while the case at the FCT High Court has to do with an alleged breach of contract, tortuous interference of bid of sale and criminal devaluation of property of a corporate organization. In this circumstance I am of the firm view that there is no incident of double compensation in the two cases.
Furthermore, abuse of process of Court has its own features. Sanusi, JSC in the case of Chief B.A. Allanah & Ors. v. Mr. Kanayo Kpolokwu & Ors (2016) LPELR 40724 (SC) held that:
“The common feature of abuse of process of Court centres on improper use of judicial process by a party in litigation aimed or, targeting on interference with due administration of justice. To my mind, some of the features of abuse of Court process include the under mentioned features, even though they are by no means exhaustive.
These features are: (i) Filing of multiplicity of actions on the same subject matter against the same opponents on the same issues or numerous actions on the same matter between the same parties even where there is in existence, a right to commence the action. (ii) Instituting different actions between the same parties simultaneously in different Courts even though on different grounds. (iii) Where two or more similar processes are used in respect of the exercise of the same right, for instance, a cross appeal and a respondent’s notice. (iv) Where two actions are instituted in Court the second one asking for relief which may however be obtained in the first, the second action is, prima facie vexatious and an abuse of Court process. See Okorocha vs. PDP (2014) 7 NWLR (Pt. 4406) 213; Saraki vs Kotoye (1992) 9 NWLR (Pt. 264 156; Ogoejeofo vs Ogoejeofo (2006) 3 NWLR (Pt. 966) 206.”
See also the cases of Hon. Justice Adewuyi Oyeyemi (Rtd) & Ors v. Hon Timothy Owoeye & Anor (2017) LPELR-41903 (SC), where Onnoghen, JSC (as he then was) held that it is settled law that abuse of process contemplates multiplicity of suits between the same parties in regard to same subject and on the same issue, and the case of Nwosu v. PDP (2018) 14 NWLR (Pt. 1640) 532 where Augie, JSC held that
“To sustain a charge of abuse of Court process, there must co-exist inter alia:
(a) a multiplicity of suits;
(b) between the same opponents;
(c) on the same subject matter; and
(d) on the same issues.
All these pre-conditions are mutually inclusive as they are conjunctive.
[Umeh v. Iwu (2008) 8 NWLR (Pt. 1089) 225 referred to.] (P. 550, paras D?G)”
In the instant case none of these basic components of abuse of process can be traced. A charge of an abuse of process in the circumstance cannot be sustained in this case. From this consideration therefore this issue is resolved in favour of the respondent.
Issues Five, Six and Eight:
These issues deal with whether the Court below can vary the judgment of the Supreme Court and make the order using the Inspector-General of Police.
The learned senior counsel for the appellant canvassed that a lower Court cannot in the process of enforcement of the judgment of the Supreme Court alter or vary it in any form. That all Courts are functus officio with respect to the final judgment of the apex Court. That the Court below gave judgment which radically departed from the judgment of the Supreme Court. He relied on the cases of Secretary, Iwo L.G v. Adigun & Ors (1992) 6 NWLR (pt. 250) 723, 743; Ojo v. Att. Gen Oyo. State (2008) 15 NWLR (Pt. 1110) 309, 326, Counsel further canvassed that the Court cannot award a relief not claimed. He relied on the cases of Oduwole v. West (2010) 10 NWLR (Pt. 1203) 598, 629,. Akinduro v. Alaya (2007) All FWLR 9Pt. 381) 1653. He contended also that the parties cannot blow hot and cold. Ude v. Nwara & Anor (1993) 2 NWLR 9Pt. 278) 638, Jadesimi v. Okotie-Eboh; In re Lessey (1989) 4 NWLR (pt 113) 113.
That the respondent cannot accept Court’s decision on specific performance and jettison the Purchase Price. That the use of a financial Audit Firm KPMG or any firm to audit the account of ALSCON is extraneous to the judgment of the Supreme Court. He canvassed further that contrary to the decision of the Court below, the additional order but a substantive and an independent order. He relied on the cases of Akinbobola v. Plisson Fisko (Nig) Ltd & Ors (1991) 1 NWLR (Pt. 67) 270 and Obayagbona & Anor v. Obazee & Anor. (1972) SC (reprint) 159. He urged the Court to allow this appeal.
The learned senior counsel for the respondent asked whether the appellant or the parties could deviate from the accepted bid price of US $410 Million taking into cognizance depreciation in the value of ALSCON. He submitted that the appellant in its wisdom inserts in Exhibit F the price of US $250 Million which it said represent current value of ALSCON. He contended that the Court below was right to enforce the judgment based on Exhibit F.
The Court below made orders which are at the crux of this appeal. Part of these orders were said to be consequential orders and the learned counsel for the respondent submitted that the Court has an inherent jurisdiction to grant a consequential relief. Truly, every Court is endowed with the power to make consequential orders. Iguh, JSC in Awoniyi & Ors. v. Reg Trustees of the Rosicrucian Order Amorc (Nigeria) (2000) 10 NWLR (Pt. 676) 522 held that:
“The purpose of a consequential order is to give effect to the decision or judgment of the Court but not by granting an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit nor was it in the contemplation of the parties that such relief would be the subject matter of a formal executory judgment or order against either side to the dispute. A consequential order may also not be properly made to give to a party, an entitlement to a relief he has not established in his favour. See Akinbobola v. Plisson Fisko Nigeria Ltd and Ors. (1991) 1 NWLR (Pt. 167) 270 at 288; Obayagbona v. Obazee (1972) 5 SC 247; Liman v. Alhaji Mohammed (1999) 9 NWLR (Pt. 617) 116.”
See also Liman v. Mohammed (1999) LPELR 1783. (SC) andNoekoer v. Executive Governor of Plateau State & Ors. (2018) LPELR 44350 (SC). It is my understanding of the law that a consequential order must however be incidental and flow directly and naturally from the reliefs claimed. A consequential order should not detract from the judgment to be enforced and must not admit of any extraneous matter outside the judgment or order to be enforced. A consequential order must be directed at giving effect to the judgment already given and not by granting any fresh and unsolicited relief. The Court or a party cannot use the occasion of the enforcement of an order or judgment to expand or extend the goal post after the match is over or to smuggle into the case an issue or issues that were not raised and proved in the course of the trial.
In the instant case, the respondent came to the Court below to enforce the judgment of the Supreme Court but end up being given a barrage of orders which tend to amend and adjust the judgment of the Supreme Court. The judgment of the Court below exceeded its jurisdiction clearly in issuing out the following orders:
(a) Order to pay 10% of the Purchase Price within 15 working days of the order instead of 15 days after execution of the mutually agreed SPA.
(b) Order to pay the balance as per audited financial statement to be conducted by KPMG.
(c) Order for the Applicant, its employees and agents shall forthwith have full, uninterrupted and unrestricted access to ALSCON to conduct a firsthand assessment of the business affairs of the company including engineering, technical, financial, accounting, facility environmental, personal, dredging and legal records pursuant to the decisions of the NCP as approved and directed in exhibits G and G1 attached to this motion.
These issues are therefore resolved in favour of the appellant.
It follows invariably that the decision of the Court below recognizing Exhibit F as the mutually agreed Share Purchase Agreement will be and it is hereby quashed. In its stead it is Exhibit BPE1, that is the authentic mutually agreed Share Purchase Agreement ordered by the Supreme. Court to be provided by the appellant for it to be executed by the parties. In consequence of this specific orders made by the Court below as shown at pages 733, 734 and 735 of the record of appeal which are in the judgment of the Court below delivered on 30/09/2014 will be and are hereby set aside.
In this appeal, two of the issues raised (issues one and seven) have been resolved in favour of the respondent while the rest six issues were resolved in favour of the appellant.
The two issues resolved in favour of the respondent cannot dislodge this appeal. The result is that this appeal succeeds in full force and it is hereby allowed. The judgment of the Court below delivered in Suit No. FHC/ABJ/CS/901/2013, on 30th September, 2014 is hereby set aside.
To enforce the judgment of the Supreme Court in Appeal No. SC/12/2008 delivered on 6th July, 2012 the appellant Bureau of Public Enterprises is hereby directed to provide the mutual agreed Share Purchase Agreement which is Exhibit BPE1 for execution by the parties to enable the respondent BFI Group Corporation pay the agreed 10% US $ 410 Million (i.e the sum of US $41 Million) within 15 working days from the date of the execution of the Share Purchase Agreement in accordance with the agreement dated 20/5/2004 and the 90% balance of bid price shall be paid within 90 calendar days as ordered by the Supreme Court.
The parties are to bear their respective costs.
PETER OLABISI IGE, J.C.A.: I agree.
MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; STEPHEN JONAH ADAH JCA. I agree with the reasoning and adopt the conclusion and orders reached therein.
Appearances:
Taiwo Osipitan, SAN with him, A.M. Kayode, Esq., I.O. Amekwe Esq., A. Kayode, Esq., and C.I.A. Ofogbunem, Esq.For Appellant(s)
P.I.N. lkwueto, SAN with him, N. Nwalarali, Esq. and O.D. Soyebo, Esq.For Respondent(s)
