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NNPC, Supreme Court ruling and frustration of BCE consultants

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By AKINOLA OGUNLEWE

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SOMETIME in or around 1998, the Nigerian National Petroleum Corporation, NNPC, advertised for provision of consultancy services for the Bonga Oil Field Development Project which constituted the first major offshore Deep-Water Development Projects in Nigeria. BCE Consulting Engineering, of which I am the chief executive, applied for the provision of the services and after series of interviews, stages and demonstrations of the firm’s financial capacity to render the requisite services in respect of the Bonga Development Project, it was duly appointed to offer the services to the Bonga Field Development.

The appointment followed an agreement entered into between the NNPC and BCE Consulting Engineers on May 20, 1999 for a duration of 44 months. After a democratic change of government in Nigeria on May 29, 1999, the elected President Olusegun Obasanjo, GCFR, constituted a panel to review contracts, appointments and licenses made by the Federal Government or its agencies including NNPC. In the course of the BCE’s performance of the contract, NNPC, without any reason whatsoever, unilaterally cancelled the contract vide its letter of July 7, 1999, ostensibly on the order of the Federal Government of Nigeria.

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As a result BCE, in 1999, commenced a civil action against NNPC, before the Federal High Court, Lagos Division, to wit: Suit No. FHC/L/CS/316/2000- BCE Consulting Engineers v NNPC. On March 7, 2002, judgment was delivered by the Federal High Court, Lagos Division, in favour of BCE Consulting Engineers wherein $22,630,000 was awarded to the firm against NNPC.

Dissatisfied with the judgment, NNPC, appealed to the Court of Appeal, Lagos Division, vide Appeal No. CA/L/61/2002- NNPC V. BCE Consulting Engineers. On June 10, 2008 the Court of Appeal ordered that the judgment sum be deposited by NNPC in an interest yielding account to be opened with UBA, Plc in the name of the Deputy Chief Registrar (DCR) of the Court of Appeal, Lagos Division. After much skirmishes, NNPC originally deposited the judgment sum in account No. CD099900001060 kept with the Energy Division, Maitama Abuja branch of UBA Plc in full satisfaction of the judgment of the Federal High Court. Thereafter, pursuant to a letter dated October 6, 2008 written by the Court of Appeal, Lagos Division to UBA Plc for the placing of proceeds of the judgment sum and accrued interests thereon in the custody and control of the DCR, in strict compliance with the order of June 10, 2008, two UBA cheques were issued in the name of the DCR, Court of Appeal, Lagos for the principal sum and accrued interests up to that date.

On November 10, 2003, the Court of Appeal delivered its ruling (now reported and cited as BCE Consulting Eng v. N.N.NP.C. [2004] 3 NWLR (Pt. 859)1), in which it ordered the joinder of BCE Consulting Engineering (a partnership Firm Otherwise known as BCE Consulting Engineers) as the second respondent in the appeal.  NNPC appealed the order of joinder to the Supreme Court which was appeal on March 19, 2007, dismissed for being frivolous.

Thereafter, the Court of Appeal subsequently delivered its decision in the substantive appeal No. CA/L/61/2002 holding that the Federal High Court lacked jurisdiction to entertain the civil action to with: FHC/L/CS/316/2000. Dissatisfied with the decision of the Court of Appeal, BCE appealed to the Supreme Court of Nigeria in Appeal No. SC/422/2011. On July 5, 2019, the Supreme Court delivered its judgment in the appeal in which it set aside the judgment of the Court of Appeal and confirmed the judgment of the Federal High Court of March 7, 2002 which awarded the sum of USD22, 630,000.00 in favour of BCE. (now reported and cited as BCE Consulting Engineers v. N.N.P.C. [2019] 14 NWLR (Pt. 1691)

While BCE was making efforts to collect the judgment sum from the D.C.R of the Court of Appeal, NNPC filed in the Supreme Court, an application, dated July 16, 2019, seeking an order setting aside its judgment of July 5, 2019. On November 12, 2019, the Supreme Court heard and summarily dismissed NNPC’s application for being unmeritorious. Specifically, the Supreme Court, held that the NNPC’s application was an abuse of process and awarded costs of N500, 000 to be personally paid by the counsel to NNPC, for bringing such a frivolous application to the Supreme Court.

It is worthy of mention that while the civil case between NNPC and BCE was pending at the Court of Appeal, Lagos Division, the then Attorney General of the Federation, pursuant to a petition to his office, and after considering the issues in the civil adjudication between NNPC and BCE had, in his letter of March 2, 2009, advised the NNPC, inter alia, as follows:

“4. In the light of the Supreme Court’s ruling of March 19, 2007, I am of the opinion that it is the interest of justice, sound corporate principles and financial prudence, for NNPC to consider a ‘safe exit’ option rather than seeking to deny the judgment creditors (BCE Consulting Engineers) of the fruits of the Judgment. The alternative of open-ended litigation is unlikely, in my view, to yield any fundamental reversal of the decisions variously reached in this matter by the Federal High Court, the Court of Appeal and the Supreme Court, respectively.”

Despite being availed with the legal opinion of the Chief Law Officer of the Federation made on March 2, 2009, NNPC still refused to reason but insisted on contesting the rights of BCE to the judgment sum.

Almost four years after the Supreme Court had directed parties to explore settlement, the office of the Attorney General of the Federation on October 20, 2016 brokered a settlement meeting, pursuant to which NNPC, in its letter of December 28, 2016 offered to pay (US$1,000,000) as full and final settlement of BCE’s claims.

In response, BCE, by its letter of January 9, 2017, rejected the NNPC’s offer of $1,000,000 as being and unfair, unjust unconscionable. Accordingly, litigation over the subject matter continued until the Supreme Court delivered its final judgment on July 7, 2019.

The ruling of the Supreme Court of November 12, 2019 finally laid to rest the liability of NNPC to BCE in litigations which spanned over a period of about 20 years. Whereas, the judgment sum USD22, 630,000 still remains in the custody of the Deputy Chief Registrar of the Court of Appeal but payable to BCE.  Sometime in November 2019, in order to stop the implementation of the judgment of the Supreme Court, NNPC petitioned the Economic and Financial Crimes Commission, EFCC, seeking to forfeit judgment sum still in the custody of the DCR of the Court of Appeal but payable to BCE. Dr. Akin Ogunlewe, the Chairman of BCE was consequently invited by EFCC to their Lagos Office and subsequently to their Abuja office in respect of NNPC’s petition.

BCE and Dr. Akin Ogunlewe duly explained the transaction to EFCC but the EFCC on the instigation of NNPC has filed criminal proceedings against BCE and Dr. Akin Ogunlewe in Charge No. FHC/ABJ/CR/304/2019 (Federal Republic of Nigeria v. BCE Consulting Limited & Ors) and FHC/ABJ/CS/1455/2019 (Federal Republic of Nigeria v. BCE Consulting Engineers & Ors) in the Abuja Division of the Federal High Court.

By these suits, the EFCC is planning to obtain an order of forfeiture and take away the judgment sum from control of the DCR of the Court of Appeal, thereby enabling NNPC to obtain what it could not get on the merit through the civil proceedings.

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