President Muhammadu Buhari has reportedly cancelled the multi-million-dollar Cargo-Tracking Contract amid the massive controversy it generated, especially within the diplomatic circle after his Chief of Staff, Prof Ibrahim Gambari on the 16th August 2022 violated the International Ship and Port Facility Security Code (ISPS Code) in an attempt to override the Presidential Executive Order given to the Ministries of Finance and Petroleum, replacing it with a mere approval in total disregard for International Maritime Rules and Regulations.
Under the regime of the ISPS code, which came into force in 2004, CTN scheme must be approved by Legislation or by Executive Order, which was rightly given to Federal Ministry of Finance (FMoF) and Federal Ministry of Petroleum Resources (FMoPR), before top government officials derailed the process, “due to personal interests.”
The CTN contract, which was purportedly awarded on 7 December 2022 to Antaser Belgium, alongside four Nigerian companies by the Ministry of Transport, was also contrary to a court order, two Presidential Executive Orders and in contravention of the Legal Advice of the Attorney-General of the Federation, Abubakar Malami, SAN.
It is alleged that the Nigerian companies are linked to the government officials, who are said to have pushed for the award, even when they knew it was adverse to due process, due diligence and without Buhari’s approval.
“The President has been livid over the manner the contract award was handled without due process and without due diligence on the Belgium company, after it turned out that its history of commercial activities in Africa is replete with untimely terminations and vexatious litigations,” a source, who did not want his name in print, said.
According to him, it has also been revealed that Antaser, a Belgium-based company not to have been registered in Nigeria for doing business, had been expelled from at least six other African countries.
Investigation further showed that Antaser is in court with the Ghana Port Authority ( Suit No: CM/CGS/0532/18) over a similar contract.
In any case, the award of the CTN contract to the Belgium company was curiously at variance with an overriding legal opinion of the Attorney-General of the Federation, which he communicated in a letter to the Bureau of Public Procurement (BPP), dated 11th of January 2022, stating the position of the Nigerian law to the effect that only the Federal Ministry of Finance, in conjunction with the Federal Ministry of Petroleum Resources, have the competence to implement the CTN, which includes the award of contracts , in pursuance thereof.
“Only the Federal Ministry of Petroleum has the mandate to implement Crude Oil Services,” Mr. Malami SAN stated, adding that the Federal Ministry of Finance has the mandate for Container Cargo Tracking.
The BPP had requested legal clarification as to which ministry had the competence to award the CTN contract.
“The said award to Antaser was also contrary to two executive orders of the President, which had not been cancelled as at the time the Ministry of Transport went ahead to award the contract. There was likewise no evidence that the transport ministry voided the legal opinion of the AGF in a court of competent jurisdiction before it went ahead with the CTN contract award.
“It therefore means that they acted without a legal basis,” the source added.
Recall that in 2018, President Buhari had in the Executive Order, titled “Planning and Execution of Projects, Promotion of Nigerian Content in Contracts and Science, Engineering and Technology”, directed Ministries, Departments and Agencies (MDAs) to promote local content by giving preference to Nigerian companies (defined as companies formed and registered in Nigeria with no less than 51% equity shares owned by Nigerians) in the award of contracts, bids and projects.
The said order, which came into effect on 2 February, 2018, required Nigerian companies to be given priority in the award of contracts. Unless where the requisite expertise is lacking, then foreign companies, who demonstrate a plan for indigenous capacity development, could be considered.
And on May 10th, 2021, Buhari further directed the Federal Ministry of Finance, in conjunction with the Federal Ministry of Petroleum Resources to commence the immediate implementation of the said Advanced Cargo Declaration (ACD)/Cargo Tracking Note (CTN), which had lingered since 2011.
In pursuance of this presidential directive, the two ministries jointly requested the Bureau of Public Procurement (BPP) to issue a “No Objection” certificate in order for them to proceed with the award of the single-source contract to Donnington Nigeria Limited, in view of the national security issues involved.
So what’s next now?
According to our source, the President has directed the withdrawal of the approval given to Ministry of Transport, which was against the legal clarification of the Attorney-General of the Federation, Abubakar Malami (SAN).
To avoid lengthy and costly litigation on the matter, he said that the President has directed the reinstatement of the executive order earlier given to Federal Ministry of Finance and Federal Ministry of Petroleum.
“And the BPP is expected to go ahead an obey the Chief Legal Officer of Nigeria and issue the no objection certificate to Donnington Nigeria Ltd.”
Recall that in September 2022, based on the application of Donnington Ltd, Justice Ekwo of the Federal High Court Abuja had issued an injunction, restraining the award of the CTN contract. The judge had ordered the maintenance of the status-quo, pending the determination of the substantive matter.
The Ministry of Transport that purportedly awarded the CTN contract to Antaser was one of the defendants in that case, alongside, the AGF, and the ministries of Petroleum Resources and Finance.
Donnington had gone to court when it sensed foul-play by some top placed government officials. They claimed in the case that, based on President Buhari’s approval of its proposal, it had committed funds to procure equipment, engage staff and foreign partners, but the defendants were planning to now substitute it with other companies.
CHECKPOINTCHARLEY had reported that R.O. Atabo, SAN, Solicitors to Donnington Ltd had written to President Buhari about the alleged illegality perpetrated by the Ministry of Transport, asking him to annul the sham award to Antaser.
Inquiries for confirmation sent to Garba Shehu, a media aide to the president, have not been answered as at the time of filing this report.