Two Senior Advocates of Nigeria have asked the Attorney General of the Federation and Minister of Justice, Mr Abubakar Malami to obey a court order in respect of a dispute on the multi-million Naira E-Customs Modernisation project.
The senior lawyers, Messrs Ahmed Raji and Dipo Okpeseyi have in separate letters warned the AGF; the Minister of Finance, Budget and National Planning and Secretary to the Government of the Federation of “underhand efforts being made to obtain the Federal Executive Council’s approval and or ratification of the re-award of the E-Customs Modernisation Project.”
Specifically, the lawyers are asking the Federal Executive Council to suspend discontinue or discountenance any request to initiate deliberations or a fresh request for approval for the award of the said contract to any other bidder aside the original approval granted by FEC to Messrs E- Customs Project Limited.
“It is in spite of all these that the Nigeria Customs Service is pushing to have the FEC grant another approval with the sole purpose to embarrass, overreach and undermine the earlier approval and ratification by the FEC and prejudice the matter pending in court,” said Mr Okpeseyi in his letter to the Secretary to the Government of the Federation dated April 11, 2023.
The Federal High Court in Abuja had in June 2022, restrained the Federal Government from enforcing or giving effect to an agreement on the Customs Modernisation Project otherwise known as E- Customs allegedly executed by its agents on May 30, 2022. On February 20, 2023, the court had admonished all parties in the matter to preserve the res of any matter before court and do nothing to interfere with the proceedings.
The agents who allegedly executed the disputed concession agreement are the Nigeria Customs Service, Trade Modernization Project Limited, Huawei Technologies Company Nigeria Limited and African Finance Corporation.
The court also issued an order of interim injunction against the Federal Government or its agents, acting through the Federal Executive Council, from retrospectively ratifying the decision to concession the Customs Modernisation Project also known as e- customs project to Trade Modernization Project Limited, Huawei Technologies Company Limited and African Finance Corporation.
The restraining order issued by Justice Inyang Ekwo of the Abuja Division of the court shall last till the hearing and the determination of a suit brought against the Federal Government and other parties by two aggrieved companies.
Hearing in the case resumes on April 19 but the plaintiffs have raised an alarm that the Minister of Finance and the AGF are going ahead to present a new memo to FEC on the matter despite a restraining court order.
The two aggrieved companies, E-customs HC Project Limited and Bionica Technologies (West Africa) Limited jointly challenged the alleged unlawful and fraudulent concession of the E-custom project to the defendants.
Counsel to the two aggrieved companies, Anone Usman had on behalf of the two plaintiffs argued an ex-parte application praying the Federal High Court for the interim orders against the defendants to protect the interest of his clients. Justice Ekwo while ruling on the ex-parte application granted the prayers of the plaintiff having placed sufficient evidence of interest in the concession project.
The judge also granted permission to the aggrieved companies to serve a writ of summons and all other filed processes on the African Finance Corporation at its head office, located in Ikoyi, Lagos through DHL courier services.
Defendants in the suit are the Federal Government of Nigeria; Attorney-General of the Federation; Minister of Finance, Budget, and National Planning; the Infrastructure Regulatory Concession Commission; Nigeria Customs Service; Trade Modernization Project Limited; Huawei Technologies Limited; African Finance Corporation and Bergman Security Consultant and Supply Limited being 1st to 9th defendants respectively.
The two plaintiffs had in their statement of claim narrated how they proposed to carry out customs modernization project through several government officials for the benefit of the Nigeria Customs Service. They claimed that after series of meetings and negotiation with some of the defendants, President Muhammadu Buhari granted anticipated approval for the e- custom Project
They averred that on September 2, 2020, the Minister of Finance presented a memo number EC2020/153 to the Federal Executive Council, FEC, the highest decision-making body of the Federal Government, and secured approval for the two plaintiffs to be granted the concession.
Plaintiffs further claimed that trouble started when the Nigeria Customs Service unilaterally reviewed the FEC approval and imposed other conditions among which are shareholding formula and governance structure.
They claimed that the power of the NCS to unilaterally review FEC approval was protested and that the Comptroller General of Customs stood his ground. Plaintiff asserted that to their surprise they read in the news that the Nigeria Customs Service had executed a concession agreement with Trade Modernization Project on May 30, 2022, Huawei Technologies Company, and African Finance Corporation in total breach of the Concession Agreement vetted by the AGF in conjunction with the Minister of Finance.
They averred that Trade Modernization Project was incorporated April 2022 at the Corporate Affairs Commission with one Alhaji Saleh Amodu, a close friend of the Comptroller General of Customs as the chairman.
Plaintiff asserted that the new company having been just incorporated in April 2022 could not have obtained and did not obtain the full business case compliance certificate from the Infrastructure Regulatory Concession Commission and the approval of the Federal Executive Council to carry out the e- customs project.
They therefore asked the court to make a declaration that the decisions of the Federal Government and its agents to enter into concession agreement with Trade Modernization Project, Huawei Technologies Company and African Finance Corporation in respect of the e-customs project is illegal, null and void, having been made in gross violation of Section 2 of the Infrastructure Concession Regulatory Commission Act 2005.
They also asked the court to declare that E-customs HC Project Limited is the approved and rightful concessionaire for the e-customs project as approved by the Federal Executive Council at its meeting of September 2, 2020, and in line with Section 2 of the Infrastructure Concession Regulatory Act.
They also applied for an order of the court directing the Federal Government through the AGF, Finance Minister, ICRC and NCS to consummate the E- customs project with the 1st plaintiff as approved by FEC in September 2020. Besides, the two plaintiffs ask the court to compel the defendants to pay them a sum of Two Hundred Million Naira as cost of litigation.