BUA Group Protests Decommissioning of P’Harcourt Jetty, Blackmail, By NPA

BUA Group, on Sunday, protested the decision of the Nigerian Port Authority (NPA) management to decommissioning its Port Harcourt jetty despite a subsisting order of the Federal High Court, Lagos Division, while ignoring terms of the arbitration process.
While promising to follow due process in the defence and protection of its rights against the recent action, the group said it remains unshaken by the actions and vowed to vigorously defend its rights as provided under the Agreement, to which remains committed.
The statement noted, for the benefits of stakeholders that “under the agreement between the parties, NPA has an obligation, among others, to dredge the port and repair the quay apron of the Terminal which responsibility it has failed to perform till date.
“The background to the issues between the NPA and BUA Ports and Terminals Limited has its root in the Lease Agreement between the Nigerian Port Authority, the Bureau of Public Enterprises on one hand both representing the Federal Government of Nigeria and BUA Ports and Terminal Limited on the other hand. The Lease Agreement provides for mutual rights and obligations and makes provision for dispute resolution mechanism which explicitly states that dispute shall be resolved by arbitration.
“To our surprise and utter bewilderment and in clear breach of the contractual provisions, NPA by a letter dated 11th November 2016 terminated the Lease Agreement. BUA Ports and Terminals as a law-abiding corporate citizen approached the Federal High Court, Lagos Division in Suit No. FHC/L/CS/633/17 between BUA Ports and Terminal Ltd v. NPA contesting the purported termination of the Lease and obtained an order of injunction restraining NPA from terminating or giving effect to the Notice of Termination pending the referral of the issues in dispute to arbitration as provided under the Agreement. The Order granting injunction is dated 18th January 2018.
“By the terms of the Agreement, the parties are enjoined to continue with the observance of the terms and performance of their respective obligations under the Agreement even while disputes are being resolved by either court or arbitration.
“As a result of the injunction and the terms of the contract, BUA Ports and Terminals continues to carry out its obligations under the contract pending the resolution of the dispute. It is important to state that subsequent to the order of injunction, BUA Ports and Terminals wrote several letters and made overtures to the management of NPA for an amicable resolution of the dispute. NPA did not respond to the request for amicable settlement or the overtures made as the management of NPA appears bent and determined to give effect to the Notice of Termination by several measures including but not limited to decommissioning the Terminal.”
In line with terms of the agreement, BUA said it wrote a letter dated May 16, 2019, notifying “the NPA of the state of the jetty and the need for immediate remedial works. BUA Ports and Terminals specifically in that letter requested the approval of NPA for it to carry out the necessary repairs and reconstruction to avert imminent collapse and danger to human lives. However, NPA instead of giving the requisite approval as requested in our letter and consistent with the terms of the Agreement, in its determination to give effect to the purported Notice of Termination took laws into its hand by directing the decommissioning of the jetty and immediate closure of the Terminal.”
In any case, it stressed that the needed repairs resulted from “the nefarious activities of hoodlums and vandals who had over a period of time cut the pipes and steel beam of the berths, thereby affecting their stability, among others. The activities of these hoodlums and vandals were at various times reported to the NPA who had the responsibility and obligation under the Agreement to provide security for the Ports. The NPA did nothing. Indeed BUA in its determined effort to tackle these issues caused some arrests to be made and some of the suspects prosecuted, but NPA as owners of the Ports showed little or no interest in the prosecution and the case was lost. Obviously, if the NPA had been alive to its responsibilities and provided the required security, the activities of the vandals would have been prevented.”
The repair and reconstruction required for the part of the Jetty in question, BUA Group stressed, “does not require a decommissioning or closure of the entire Terminal.
“The carrying out of the remedial works if approved by the management of NPA would have remedied the defects stated in our letter to NPA and averted any risk of loss of property and lives. It is apparent that NPA is using the said letter by BUA Ports and Terminals as a subterfuge for an effective termination and closure of the Terminal in violation of the order of the court restraining NPA from carrying into effect the purported Notice of Termination.”
It stressed that “under the Lease Agreement, NPA has an obligation, among others, to dredge the port and repair the quay walls and apron of the Terminal which responsibility it has failed to perform till date. The dredging of the port is a sine qua non condition for the effective reconstruction and rehabilitation of the jetty given the age of the port (over 100 years old).”
Contrary to the impression being created by the NPA, BUA said it never refused or neglected to reconstruct the berths, stressing that it actually awarded a contract for the rehabilitation and reconstruction of the berths to Julius Berger Nigeria Limited. A total of four million and seven hundred thousand Euros was paid in part for the contract, lamenting that the repair work, whose contract is still subsisting, was “frustrated by the deliberate refusal of NPA to fulfill part of their obligations stated above.”
Following the NPA letter dated June 17, ordering the decommissioning of the Jetty and closure of the Terminal, BUA said NPA extracted an indemnity and undertaking from its management and reopened the Jetty and the terminal for three weeks only to direct the Port Manager orally to close the terminal.
It, therefore, wondered why the NPA will extract an undertaking and indemnity if it would still close the Terminal, stressing that “subsequent to the order of closure, NPA has since referred the matter to arbitration at the Court of Arbitration of the International Chamber of Commerce, Paris.
“BUA has responded to the claims of NPA and also counterclaimed.”
Rather than allow the arbitral process to proceed and await the determination of the issues, the group said NPA has taken “physical possession of the Terminal by force and engaged in a campaign of calumny against us in its bid to justify the unlawful and extra-legal measures taken by the authority.”
The statement accused the NPA management of being desperate “to terminate the Lease Agreement notwithstanding the terms of the agreement which provides that parties should continue with their respective obligations under the Agreement pending the resolution of the disputes, the order of injunction and the pendency of the arbitration proceedings between the parties.
“While we are willing and ready to carry out necessary repairs/reconstruction of the berth (with the necessary cooperation of NPA), we shall in the interim vigorously defend and protect our rights as provided under the Agreement both in court and the arbitration proceedings,” the statement added.