E-Customs Project: Despite court order, FEC okays fresh memo

Despite a subsisting court order, the Federal Executive Council (FEC) Wednesday approved the E-Customs Modernisation project.

Briefing journalists at the end of the meeting presided over by Vice President Yemi Osinbajo, SAN; the federal government however, said it was not aware of any court order.    

Minister of State Budget and National Planning Clem Agba who made the government’s position known, said council  approved the implementation of the Nigeria Customs Service modernization project to a concessionaire.

He gave the concessionaire’s name as Bergman Securities Consultant and Suppliers Limited as the project sponsor, Africa Finance Corporation as lead financier, while Huawei Technologies would be trained as lead technical service provider.

The minister said the concessionaire had furnished the government with $9million security from the satisfactory performance of the project, and also executed the depth facility tensions in the sum of $300 million to finance the first phase of the project. 

Agba said the revenue sharing arrangement is 45% upon accruals to the comprehensive input service scheme, going to the concessionaire and 55% going to the federal government among others.

Firms’ legal team

But the approval was in disregard of a subsisting court order in a suit brought against the federal government and its agents by the aggrieved companies.   

It will be recalled that two senior lawyers had asked Attorney General of the Federation and Minister of Justice Abubakar Malami, SAN, to obey a court order in respect of a dispute on the multi-million Naira project.

Blueprint had reported that the senior lawyers viz Messrs Ahmed Raji and Dipo Okpeseyi, both Senior Advocate of Nigeria (SAN), had in separate letters, warned Malami, Minister of Finance, Budget and National Planning Zainab Ahmed and Secretary to the Government of the Federation Boss Mustapha 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.”

Okpeseyi, while recalling the 2019 FEC approval of the project, said “the Nigeria Customs Service without consulting with our client as the lead sponsor of the consortium altered the Federal Executive Council’s approval and ratified Negotiated Concessionaire Agreement and all efforts to reach and amicable resolution of the issues proved abortive. Consequently, our client initiated a suit at the Federal High Court Abuja Division in Suit No: FHC/ABJ/CS/848/2022 between E-Customs HC Projects Limited and Bionica Technologies WA Limited-v- Federal Government of Nigeria & Others….”  

“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, over reach and undermine the earlier approval and ratification by the FEC and prejudice the matter pending in court,” the silk had warned.  

He had told the FEC “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 our client so as not to embarrass FEC for making a single award twice, breach the Rule of Law and prejudice the interest of our client in the subject matter, pending the final determination of the above named suit by the Court.”

In a similar letter by Raji, another silk, the counsel had written that: “It has come to our knowledge that despite the court’s admonition  as aforesaid, the Ministry of Finance, Budget and National Planning, at the behest of the Nigeria Customs Service, is making concerted effort towards presenting a memo to the Federal Executive Council (FEC) for its approval  and/or ratification of the re-award of the said project to the 6th Defendant.

“We do not believe that the aforesaid line of action  by the Ministry is with your knowledge or counsel,  and it is for this reason that we write you most respectfully, to use your good offices on your Ministry to desist from the said line of action, as well as any other step(s) that may be antithetical  to the pending proceedings in court.”

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 20 February, 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 further 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, as issued by Justice Inyang Ekwo of the Abuja Division of the FHC,  shall last till the hearing and the determination of a suit brought against the Federal Government and other parties by two aggrieved companies.

Although the case was adjourned for definite hearing till June 8, the FEC, however , pressed on with the memo 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.

Further order from court

Also, counsel to the two aggrieved companies, Anone Usman, had, on behalf of the two plaintiffs, argued an ex-parte application praying the court  for the interim orders against the defendants to protect the interest of his clients.

And ruling on the ex-parte application, Justice Ekwo granted the prayers of the plaintiff having placed sufficient evidence of interest in the concession project.

Similarly, the trial 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.

Listed as 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. 

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.

Also, the plaintiffs asked the court to compel the defendants to pay them a sum of N200 million as cost of litigation.

AGF acknowledges receipt   

Acknowledging receipt of Okpeseyi’s letter, the AGF, in another correspondence, through Gladys Odegbaro (Mrs), Director (Solicitors Department) said: “I am directed to inform you that the matter is currently  a subject of litigation and therefore subjudice . You may therefore wish to await the decision of the Court.

“Please accept the assurances of the warm regards of the Honourable Attorney General of the Federation and Minister of Justice, please.” 

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