The Federal Government has faulted the cancellation of the $100 million concession agreement by Transmission Company of Nigeria, TCN, with Phase3 Telecom Ltd and Alheri Engineering Services, describing it as illegal and a nullity.
The government had on March 20, 2006, facilitated the signing of $100 million Concession Agreement that mandated the concessionaire to design, build, finance and operate, DBFO, fibre optic network infrastructure in the country.
Arising from the need to review the concession terms as envisaged in the agreement, following the liberalisation of the National Long-distance Fibre Optic landscape in Nigeria, TCN reneged on reports by an audit firm and recommendation of the Infrastructure Concession Regulatory Commission, ICRC.
In a letter addressed to Mr. Babatunde Raji Fashola, the then Minister of Power, Works and Housing, dated January 10, 2018, with reference number: LE14/TCN/02, Mr Abubakar Malami, SAN, the Attorney-General of the Federation and Minister of Justice condemned the purported termination of the concession agreement by TCN, advising that the terms of the contract be reviewed, based on reports of ICRC and audit report by a firm, known as SIAO.
The termination, according to the AGF “was arbitrary, premature, illegal, null and void, having been issued in violation of the terms of agreement which mandates under Article 31:1 that parties shall go to arbitration panel where disputes cannot be resolved amicably.”
He said: “Several meetings were held at the instance of ICRC, with the concessionaires and TCN in attendance. When the dispute could not be amicably resolved, it was agreed by ICRC, TCN, and concessionaires to jointly engage an auditor to review the issues in dispute and make recommendations to bind and guide the parties going forward.
”Consequently, an audit firm, SIAO, was appointed to carry out financial and technical audits of the situation. In summary, SIAO found that the agreement and financial obligations thereunder are not sustainable, in line with present realities in the industry.
“TCN failed to give effect to the findings of SIAO and every attempt by the concessionaires to meet with TCN towards resolving the dispute was to no avail.
“It is important to note that a dispute resolution meeting was held on August 18, 2017, where TCN inter alia requested for concessionaire’s proposal for restructuring which was submitted by the concessionaires on August 24, 2017.
“Unfortunately, however, rather than respond to the restructuring proposal one way or the other for further engagement, with a view to resolving the dispute or refer same for arbitration as agreed by the parties under the agreement, TCN via a letter dated August 30, 2017, terminated the agreement.
“Upon the letter dated August 30, 2017, TCN has subsequently taken further actions to deny concessionaires access to their sub-stations where concessionaires have installed active transmission equipment, thereby preventing them from monitoring the national fibre network.
“TCN has also locked concessionaires’ equipment room’s nationwide, thereby making access impossible for maintenance to the fibre optic network infrastructure. These acts by TCN have allegedly led to disruption of services nationwide.”
