November 29, 2022

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E-CUSTOMS CONCESSION: Court Orders Contracting Companies to Stay Action

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A Federal High Court in Abuja has restrained the Federal Government from enforcing or giving effect to an agreement on the Customs Modernization Project otherwise known as E- customs allegedly executed by its agents on 30th May 2022.

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, AFC.

The court last Friday also issued an order of interim injunction against the Federal Government or its agents acting through the Federal Executive Council, FEC, from retrospectively ratifying the decision to concession the Customs Modernization Project also known as the e- custom project to the Trade Modernization Project Limited, Huawei Technologies Company Limited and African Finance Corporation.

Nigeria’s Federal Executive Council Meeting in session

The restraining order issued by Justice Inyang Ekwo of the Abuja Division of the federal high court shall last till the hearing and the determination of a suit brought against the Federal Government and other parties by two aggrieved companies.

The two aggrieved companies are, E-customs HC Project Limited and Bionica Technologies (West Africa) Limited, who 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 plaintiffs 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.

Justice Ekwo subsequently fixed 28th June 2022 for a hearing in the matter.
The two plaintiffs had in their statement of claim narrated how they proposed to carry out a custom modernization project through several government officials for the benefit of the Nigeria Customs Service.

They claimed that after a series of meetings and negotiations with some of the defendants, President Muhammadu Buhari granted anticipated approval for the e- custom Project.

They averred that on 2nd September 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 the 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 30th May 2022, Huawei Technologies Company and African Finance Corporation were 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 in 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 had just been 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- custom project.

They, therefore, asked the court to make a declaration that the decisions of the Federal Government and its agents to enter into a 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 2nd September 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 asked the court to compel the defendants to pay them a sum of Two Hundred Million Naira as the cost of litigation.

==@newsdiaryonline

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