An Ikeja High Court last Monday dismissed a case instituted against the Anosike brothers on the sale of Daily Times of Nigeria (DTN) which their company Folio Communications Limited bought in the privatisation exercise. Justice Habeeb Abiru in striking out the case said it was unfair for the prosecution to be delaying the case at the detriment of the accused persons who may suffer unjustly as a result of the delays. “If your home is not tidy, why should the people outside suffer?” the judged had asked the prosecution.
The Attorney General of the Federation (AGF) had initiated a criminal prosecution against the Anosike brothers following a petition from Senator Ikechukwu Obiorah a Minority Interest Holder struggling for control and takeover of DTN on the basis of loan DSV, a company owned by Senator Obiorah gave to Folio Communications. This is evident from the appearance of Mr. L A Idu on behalf of DSV ‘as observer’ in at all the court sessions while the case lasted. After series of adjournments, the Attorney General decided to transfer it to the Lagos State Directorate of Public Prosecution on grounds that it was a state case.
The Lagos State Attorney General and Commissioner for Justice Mr. Ade Ipaye said that his office may revisit the case if Police finds any other reason for them to do so. The Lagos Attorney General was quoted to have said that his office had just finished the review of the investigation report handed over to it and found out there was the need to carry out further investigation “because of several gaps in the report.”
One of the ‘several gaps’ may include a letter written by the Inspector General of Police (IG) to the AGF dated 6th May 2010 with the title, RE- FINAL INVESTIGATION REPORT, THE CASE OF FRAUD IN THE DAILY TIMES NIG. PLC (CR NO:94/10) in which the IG made reference t report no: CB,4099/4/SFU/FMIU/VOL.1/50 dated 28th April 2010 and directed that ‘the case be regarded as a civil case in nature.’ It therefore arouses a sense of curiosity why the AGF ignored the IG’s recommendation made on grounds of final report of the investigation on the case and went ahead to initiate criminal proceedings.
There is also another of the ‘several gaps’ in a letter written by O. O Fatunde the then Deputy Director Public Prosecution on behalf of the AGF to the Director of Public Prosecution through the Lagos Liaison Office of the Federal Ministry of Justice in which the AGF observed that ‘one Mr. Ugwu (ACSC) went ahead to file criminal charge while investigation was still on.’ The AGF went on to direct that the case be withdrawn to ‘allow for dispassionate re-appraisal of the entire case.’ This same ‘Ugwu’ was said to have refused to comply with the AGF’s directives and carried on with the case for months before another mysterious approval from the AGF emerged directing that the criminal charge be ‘filed.’
A new question that is begging for answer now is why the Lagos State Attorney General and Commissioner for Justice would not just accept that there is no case to prosecute since he cannot find anything incriminating on the accused especially in view of the IG’s earlier recommendation that this was a civil case? What new thing would the Police find that could not be found since the past two years when the case commenced. Some people have even insinuated and we hope it is not true that the Attorney General of the Federation sent the case to Lagos state hoping the Anosike brothers would be in a great disadvantage on the basis of ethnic sentiments.
Folio Communications Limited on 30th July 2004 paid the sum of N1.25billion to acquire 233,754,840 shares of DTN which gave it 96.05% of the Company. This was after Folio had gone through all the due processes of privatisation as provided in the Privatisation Act and emerging as the preferred bidder. Before Folio bought DTN, the company was completely dead, having been run down by successive government appointed management teams. When DTN was being sold, the Bureau of Public Enterprises (BPE) said it spent N820million on settlement of liabilities because one of the conditions of the sale was that new owners would take over without encumbrances. When Folio took over DTN, they were said to have been confronted with 150 different liability claims totalling N1.1billion which they have been battling since then to settle. This was even in view of the claim by BPE that DTN’s total assets were worth N1.9billion. To make matter worse, a valuation report on DTN found in the course of the research for this write up reveals that the company was valued at N730,o64,520 by the time it was sold. The report stated that all of DTN machines were obsolete. The valuation was “based on net value of DTN, level of shareholding of the new investors and other points raised.” Judging from the report of that valuation therefore, Folio paid the sum of N1.25billion on DTN which is N500million premium over its worth, in addition to the huge liabilities it inherited.
In spite of all these contradictions and obvious challenges on its way, Folio as a company managed by young and enterprising Nigerians who wanted to showcase their ingenuity, faced the daunting task head on; and within a short period was able to put the four DTN publications back on the newsstand. Thus Nigerians were again reading their darling Daily Times, Weekend Times, Business Times and Lagos Weekend. But what obviously seems like a conspiracy of like minds between some businessmen and others in government have become a clog in the wheel of DTN progress. Folio said recently in a media statement that it has spent over N500million on court cases alone.
Folio while paying for DTN had borrowed some money from a company called DSV owned by Ikechukwu Obiora and Chief Ben Okoye. Folio had subsequently divested a minority interest of DTN to DSV but at some point in their relationship, there was a disagreement between Folio Communications and DSV which saw the two companies in court. In 2007, a Senate ad- hoc Committee initiated moves to probe privatisation exercise carried out during the regime of former president Olusegun Obasanjo. By this time, Ikechukwu Obiora was a member of the Senate. It was alleged that his disagreement with Folio Communications on DTN was one of the reasons why the Senate probe was even initiated and that Senator Obiorah used his position to influence his colleagues in the Committee to make damning recommendations on the sale of DTN to Folio Communications. The Committee even went as far as recommending that DTN be handed over to Senator Ikechukwu Obiora’s company.
But while all these gang- ups endure, the BPE has at every opportunity continued to say that Folio legitimately bought DTN. In a letter written by BPE dated April 13, 2010 and signed by Ms. Bolanle Onagorowa to the Commissioner of Police (Special Fraud Unit Annex), BPE stated in clear terms that “BPE sold 233,754,840 ordinary shares of Fifty Kobo (No.50) of Daily Times to Nigeria Plc to Folio Communications Limited. This represents 96.05% of the issued and fully paid up share capital at the price of N5,34k per share. The balance of 3.95%of the issued and paid-up shares of the Company representing 9,600,000 ordinary shares of No.50 each are held over by 16,862 other shareholders. The BPE also handed over to Folio Communications Limited some equipment as contained in the valuation Report by our Advisers.”
So what was the interest of the AGF that made him institute a criminal proceeding against the owners of DTN alleging theft of DTN property? Can a man steal his own property? The AGF was said to have ignored a recommendation made by a committee himself set up on the DTN case which said he should hands off the case.
In efforts to boost the fortunes of DTN, Folio in January 2010 raised money through their assets in DTN and imported four modern and best quality printing machines but Senator Ikechukwu Obiora again used his connections to obtain court order against the equipments. Up till now, the machines are stranded at the Ports for over two years, held by court order while heavy amount accrues against Folio on demurrage. The above is in addition to the sale of some London assets of DTN by the duo of Senator Obiorah and Ben Okoye. Folio had put the assets in their care to manage being minority interest holders in DTN. The two have been dragged to court by Folio for selling DTN assets.
The case of the Anosike brothers and Daily Times could be likened to the same scenario that played out in 2008 when following recommendations by this same Senate Ad Hoc Committee on Privatisation then President Umaru Musa Yar’Adua ignored warnings from those who should know and went ahead to unilaterally terminate the concession agreement on Ajaokuta Steel Company and the National Iron Ore Mining Company (NIOMCO). Yar’Adua also terminated the privatisation agreement with Dangote Group on some Refineries and many others.
Ajaokuta Steel was mismanaged and run down by Nigerian administrators and was out of production for over 15 before it was given out to an Indian Company in a concession agreement that was meant to last for ten years. The Indians were able to resuscitate Ajaokuta and put it back into production within a short period of four months. They were producing large quantity of steel products as well as paying salaries of over 4500 Nigerian staff. But less than three years into their operation, the Nigerian government terminated the concession agreement based on flimsy allegations. Since the investors left Ajaokuta, the plant has been lying idle, overgrown by weeds. As for the Refineries that were taken away from Dangote, we all know what their fate is today.
Nigeria’s current privatisation exercise coincided with the period of Global Economic crisis for which some of the best companies in the world have folded up any laid thousands of workers off. Governments all over the world are doing all they can to encourage investors to keep companies from shutting down completely. It takes a minimum of 10 years to turn companies around so government should give investors enough time to turn these moribund enterprises around.
The terms of privatisation agreements are written in primary language. Article 10.2 of the Share Sale Purchase Agreement between BPE and Folio Communications clearly stated that if a dispute arises on the matter, the parties must resolve it through arbitration in which each party would nominate a representative. The AGF is supposed to be the Minister for JUSTICE for all citizens. For him to elect to take side and with obviously the offending party as well as resorting to the application of unconventional means in this dispute instead of complying with the letters of the SSPA speak ill of a government whose mantra is the protection of the rule of law and diminishes the image of the country in the eyes of potential investors. It is this type of impunity done through the whims of officials of government that caused the nation hundreds of billions of Naira annually in the settlements of judgements debts to aggrieved investors.
There is a need for President Goodluck Jonathan to personally intervene and call the AGF to order in this matter. It is Folio that has direct dealing with BPE on DTN and therefore the owners of the organisation. The earlier this matter is resolved the better. The minimum government can do is to mediate in a manner that Folio finds way to pay off Senator Obiorah and his associate so that DTN can go back into full production. No efforts aimed at helping investors be in profitable business would be too much in view of government’s desperate search for those that would help to boost the economy amidst daily bombing activities and other unfriendly investment environment in the country today.
Melah is an Abuja- based journalist, author and public analyst. He can be reached on email: firstname.lastname@example.org