A Review of the Nigerian Energy Industry

BPE, NCP ask court not to stop power stations’ privatisation

Namadi Sambo10 July 2014, Abuja – The Bureau for Public Enterprises (BPE) and the National Council on Privatisation (NCP) have asked a Federal High Court in Abuja to refuse an application by Ethiope Energy Limited for an order of interlocutory injunction to stop them from taking any steps to implement the bid exercise in respect of the privatisation of three National Integrated Power Plants (NIPPs) power stations.
The Niger Delta Power Holding Company (NDPHC) Limited which was also joined as a party, equally opposed Ethiope’s application to stop the bid process.
Ethiope’s lawyer, Dr. Alex Izinyon (SAN), yesterday moved the court to issue an interlocutory injunction, saying his client had met the conditions for the bids and that it was wrong to exclude it from the next round of bidding.
But counsel to the BPE and the NCP, Prof. Taiwo Osipitan (SAN) said Ethiope Energy did not have any legal right to compel the court to exercise its discretion in the company’s favour.
According to him,  an applicant for interlocutory injunction should establish his legal right.
He further argued that Ethiope wrongly based its claim on commercial bids whereas what was an issue was financial bids.
Osipitan argued that the document which the company relied on in instituting the case made reference only to financial bids and adding that having come under the wrong heading, the application for injunction should fail.
He also said that Ethiope did not meet the requirements for qualification.
According to him, bidders must show that they have 50 per cent in experience and business class sections  and other requirements.
He also told the court that the plaintiff company did not place relevant materials before the court to enable the court exercise its discretion in its favour.
Osipitan said what the plaintiff sought to stop was a completed and added that injunction could not be granted to stop a completed act.
He urged the court to dismiss the application.
Arguing in similar terms, counsel to the NDPHC, Dr. Fabian Ajogwu (SAN), said the injunction should not be granted to stop an action where damages would be an adequate compensation.
He said monetary compensation would be enough to take care of the plaintiff’s loss if at then end it lost anything.
In his reply on point of law, Izinyon asked court to discountenance the counter-affidavit filed by BPE and NCP on the grounds that they were filed out of time.
Justice Abdu Kafarati adjourned the case to October 7 for ruling.
The BPE had commenced the bid process for Alaoji, Omoku and Gbarain power stations on March 7 this year.
However, Ethiope Energy, which claimed it also submitted bids for the power stations, said it was excluded from the process.
Not satisfied with the exclusion, Ethiope approached the court for an order to stop the BPE from going ahead with the bid process.
In its statement of claim, Ethiope accused the Chairman of Due Diligence Committee, Mr. Atedo Peterside, of having an enormous influence on the BPE.
The company said Peterside had been having a running battle with its Chairman, Chief Johnson Arumemi, who had been hostile and had animosity for him.
Ethiope accused the BPE of bias, prejudice, conflict of interest, manipulation of the technical bid evaluation, due diligence exercise and that Peterside should have excused himself completely in the whole evaluation as it related to the plaintiff owing to the animosity and litigation he had instituted against its chairman.
Other defendants in the suit are the NDPHC and the Attorney-General of the Federation.
The court  had on March 17, at the instance of the company, (Ethiope Energy), stopped the BPE from going ahead with the bid process for the three NIPP currently undergoing privatisation.


– This Day

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