Concessions as an arrangement involving governments and private sector operators, to finance, develop, maintain or operate infrastructural assets such as roads, airports, railways, hospitals, bridges etc., has been an increasingly popular alternative financing model given limited public revenues cum obligation to deliver social services. There are many variants: managing existing assets, for example to optimise public service delivery (including revenues therefrom), should entail less complexity than a Build, Own, Operate and Transfer (BOOT) or Build, Operate and Transfer (BOT) concession model. Concessions, whilst being essentially Public-Private Partnerships (PPPs), are also a way to ensure better provision of public facilities and services; they encapsulate diverse, and sometimes thorny legal, regulatory and commercial issues.
It can be said that with the enactment of the Public Enterprises (Privatisation & Commercialisation) Act (PEPCA),1 in 1999 and subsequent PEPCA related activities, signaled the consideration of concessions as a serious financing option in Nigeria. It gained additional fillip in 2005 when President Obasanjo signed into law, the Infrastructure Concession Regulatory Commission Act (ICRCA),2 under the oversight of the ICRC. The ICRCA provides the statutory framework for regulating PPP activities as a mode of addressing Nigeria’s (federal) infrastructural challenges.
Aside the ICRCA as the major legislation on concessions practice in Nigeria, other secondary legislation and PPP instruments or vehicles include: Public Procurement Act,3; PEPCA (supra); Presidential Infrastructure Development Fund (PIDF)4; Companies Income Tax (Road Infrastructure Development and Refurbishment Investment Tax Credit Scheme) Order, 2019;5 Road Trust Fund (RTF) 2017; National Inland Waterways Authority Act;6 Land (Title Vesting, Etc.) Act7; amongst others. At the State level, relevant statutes include:Lagos Public Private Partnership Law,8; Lagos State Road Bridges and Highway Infrastructure Law,9; Cross River Public Private Partnership Law2010; Oyo State Public Private Partnership Law2013, etc.
Without a doubt, concessioning could be a veritable means to tackle Nigeria’s infrastructural deficit, fostering development through provision of assets for better public services, and ultimately contributing to improved quality of life, and productivity by the citizenry. Unfortunately, the history of Nigeria’s concession practice has been underwhelming and still faces challenges, mostly attributable to regulatory or government actions. The resulting controversies have negatively impacted realisation of the possibilities of concessions, thereby preventing Nigeria from reaping its full benefits. This article seeks to examine these issues and proffer a way forward in achieving optimal concession practice in Nigeria.
A. Regulatory Review: ICRCA -The Need for Amendment
Uncannily, the ICRC was only inaugurated in 2009 – four (4) years after enactment of its enabling law, the ICRCA in 2005. One of ICRC’s primary roles is to “promote, facilitate, support and coordinate implementation of sound of PPP contracts and ensure compliance with provisions of the ICRCA on (federal) concession projects.”10 In our view, the ICRC has since made limited progress in concessions in Nigeria, largely because of the constrained macro environment, typified by yet unimpressive capital spend and lack of zealousness on the part of government. On its own, the ICRCA has a few lacunas (inconsistent with its well-drafted, and business friendly objective) which demand review, if we are to truly harness the developmental progressions that concessions deliver. We discuss them hereafter:
The Overlapping Roles between the ICRC and Bureau for Public Enterprise (BPE).
The PEPCA established the BPE in 1999, with the overall responsibility of implementing transactions involving the Commercialisation and Privatisation (C&P) of federal government (FG) assets listed in the First Schedule, PEPCA. By section 13(b) and(i), BPE was empowered to “prepare public enterprises approved by the Council for privatisation” and “ensure the success of the privatisation exercise taking into account the need for balance and meaningful participation by Nigerians and foreigners in accordance with the relevant laws of Nigeria.”
Section 14(b), (e) and(g) also empowers BPE to “prepare public enterprises approved by the Council for commercialisation”; “ensure the success of the commercialisation exercise and monitor, on a continuous basis for such period as may be considered necessary, the operations of the public enterprises after commercialisation”; and “interface with the public enterprises, together with the supervising Ministries, in order to ensure effective monitoring and safeguard of the public enterprises managerial practices.” Also, section 2(1) PEPCA provides that the mode of privatisation of FG assets should be through “an offer for the sale of the shares of a public enterprise.”
ICRCA on the other hand, was enacted to ensure the effective participation of the private sector in the development, operation, financing or maintenance of FG infrastructure assets through concessions. It also seeks to ensure that private institutions possess the financial capacity, relevant expertise and experience in undertaking such infrastructure development or maintenance.11 By section 1 ICRCA, any FG ministry, department or agency (MDA) or body may enter into contract with any private investor “…for the financing, construction, operation or maintenance of any infrastructure that is financially viable or any development facility of the Federal Government in accordance with the provisions of this Act.”
Section 20(a), (b) and(c) ICRCA also empowers the ICRC to: “(a) take custody of every concession agreement made under this Act and monitor compliance with the terms and conditions of such agreement; (b) ensure efficient execution of any concession agreement or contract entered into by the Government; and (c) ensure compliance with the provisions of this Act.” Thus, concession activities are to be carried out by the financing, construction, operation or maintenance of any public infrastructure by private institutions.12
From the foregoing, whilst there are no specific provisions in PEPCA empowering BPE to control and regulate concession arrangements, unlike the ICRCA which is so specifically empowered, both agencies are still being challenged with overlapping roles in the performance of their duties. The ‘similarities’ however in the functions of commercialisation,13 part-privatisation14 and concession,15 can be presumed to be the reason for both agencies taking up crossed roles.
Nonetheless, our considered view is that expressly unifying concession regulatory powers in the ICRC will help optimize achievement of FG’s PPP infrastructure objectives; an obvious quick win being avoiding conflicts of regulatory roles. Also, having an express provision in ICRCA excluding listed public enterprises under First andSecond Schedules PEPCA from FG infrastructures considered for concession under section 1(2) ICRCA16 could also be explored. This in turn will help define boundaries, and the publicly owned enterprises each agency can focus on.
Lastly, the powers of the National Council on Privatisation (NCP) to alter, add, delete, or amend enterprises to be privatised or commercialised – as in the First and Second Schedule PEPCA17 – should be withdrawn. Accordingly, this will obviate, including FG’s potential concession assets in any of the Schedules for privatisation or commercialisation.
Absence of Statutory Provision Empowering the ICRC to Impose Fines and Penalties
Section 20(a) ICRCA18 empowers the ICRC to monitor compliance with the terms and conditions of concession agreements. In order to give full effect to this, the ICRC should have powers to impose penalty on any concessionaire failing to execute a project along the terms of the relevant concession agreement. This ‘enforcement incentive’ in turn will help speed up the transaction timeline and reduce unending delays in the performance of concession contracts.
B. Concession Practice in Nigeria – Case Studies, Issues and Lessons
Controversies, breaches of contracts, failed projects, project abandonment and protests, circumvention of court orders is the order of concerns for most concession projects in Nigeria. A few examples of these troubled concessions include:
1. Airport Operations’ Electronic Payment Systems: (Federal Airport Authority of Nigeria (FAAN) and Maevis Nigeria Limited (MNL))19
Sanctity of contracts is central to business relationships, this rule assures both parties that the terms of their agreement will be adhered to. Thus, understanding the terms of an agreement and seeking professional advice during negotiation is very essential; alleging unfairness after execution will generally be unhelpful, as the private sector player cannot be expected to bear the brunt of any shoddy preparation on the government side.
In the instant example, MNL signed a ten (10) year concession contract with FAAN in 2007, to install an electronic payment system for revenue assurance through an Airport Operations Management System (AOMS). Their AOMS was to cover Nigeria’s four (4) major airports: Lagos, Abuja, Kano and Port Harcourt. However, some years into the agreement, FAAN started claiming that MNL failed to comply with fundamental terms of the agreement; and that the contract terms unduly favoured MNL. FAAN thereafter asked for a renegotiation but MNL refused, and as a result, FAAN abruptly terminated the concession. MNL sued FAAN and the Federal High Court (FHC), Lagos ordered both parties to proceed to arbitration in line with the arbitration clause in their concession agreement. However, FAAN disobeyed the Court order and refused to appear for arbitration.20
Subsequently, FAAN used its powers as a FG agency to disrupt the concession, and entered into another contract with a multinational, SITA Telecommunications Limited (SITA) in 2012, to perform the same functions as MNL. MNL instituted another action before the FHC against SITA for allegedly inducing FAAN to breach the FAAN/MNL agreement and for allegedly converting MNL’s equipment for their use. The Court held that the FAAN/MNL concession agreement was still subsisting and valid, and awarded N5 billion damages in favour of MNL against SITA.21
Another example was the long drawn legal battle between Global Steel Holding Ltd (GSHL) and the FG over the concession of the Ajaokuta Steel Mill and National Iron Ore Mining Company, Itakpe. Here, President’s Yar’adua’s administration had revoked the concession agreement the FG had with GSHL allegedly without recourse to due process, whilst the FG asserted that the concession was revoked over claims of assets stripping by GSHL. The legal battle that ensued, left both industries idle and depreciating for almost a decade. Eventually, both parties agreed a settlement at the International Arbitration Court in London, where a modified agreement was signed.22
In Arjay Ltd v. Airline Management Support Ltd,23 the Supreme Court (SC) forcefully admonished that “…a party cannot ordinarily walk away from a contract or just because he later found that the terms of the contract or agreement are not favourable to him…” The foregoing examples show that PPP contractual arrangements in Nigeria could end up being one-sided and the government could attempt to flex it muscle as the assumed dominant partner; government may also revoke contracts in circumstances that the other party considers unjustifiable.24
Whilst government does its reputation no good with acts of self-help and disobedience of court orders, the FAAN/MNL dispute shows how proper preparation and planning by the government could have resulted in a more balanced agreement, which the government would have been more inclined, for the long term, to respect.
Incidentally, attempts to set aside contracts often happen upon change of administrations, reflecting that public functionaries fail to appreciate that government is a continuum, irrespective of change in top public functionaries. Nevertheless, it may be prescient self-interest for the private party to work towards a win-win contract as much as possible.
2. Construction & Operation (Management) of MMA2: (Bi-Courtney Limited (Bi-Courtney) and FAAN)25
It is trite that good governance requires respect for the rule of law: everyone (irrespective of status), is subject to the law. However, this principle was observed in breach, in the Bi-Courtney Limited v. Attorney General of the Federation (AGF) case.
In 2003, the Domestic Terminal (DT) and General Aviation Terminal (GAT) was concessioned to Bi-Courtney by FAAN under a BOT for 36 years. This was after Royal Sanderton Ventures Limited (Sanderton)’s concession contract was revoked, allegedly due to Sanderton’s lack of funds to develop the facility. However, upon commencement of the concession, a legal tussle ensued between FAAN and Bi-Courtney on aspects of the agreement, including the tenor, which FAAN claimed was 12, and not 36 years.26
Subsequently, contrary to the exclusivity clause in the PPP agreement, FAAN operated the GAT and opened it to some domestic airlines like Arik Air to rival the DT built by Bi-Courtney, now christened as MMA2. As a result, Bi-Courtney was losing money it could have earned if those airlines were operating from MMA2.27 Bi-Courtney sued FAAN and the judgments of both the FHC and Court of Appeal (CA) were delivered in favour of Bi-Courtney to the tune 0f N132 billion, for contract breach and FAAN’s illegal operation of the GAT.28 Just as in MNL/ FAAN matter, FAAN disregarded court orders and continued to manage the GAT, thus leading to lingering dispute between the parties
Despite the concerns caused by this MMA2 controversy, MMA2 has created a good bench mark for local airports in Nigeria. It has contributed to growth of the aviation sector by facilitating increased passenger volume, eased logistics challenges for airlines, helped to create more aviation sector jobs, and helped the government to raise more revenue from travel related taxes.
Lessons from the MMA2 disputes include the imperative of incorporating an agreed financial model into the concession contract; prospective bidders doing their homework thoroughly and being sure of their long term financing sources before bidding for PPP contracts, etc.29 Ultimately, having a water tight agreement cannot be over emphasised.
In 2018, ICRC was said to have intervened in settling the dispute between both parties, for the purpose of regaining investor’s confidence for future PPPs,30 but reports regarding its success or otherwise is still unknown.
3. Lagos Trade Fair Complex (the Complex): Aulic Nigeria Limited (Aulic)) and FG
This case also illustrates government’s defiance of court orders/rulings. In 2008, Aulic was awarded the concession over the Complex, but was later revoked in 2017 by the NCP.31 According to reports, it was revoked on grounds that the concession was not in the best interest of the country32 and Aulic’s alleged default on contractual obligations.33 Consequently, Aulic filed an action against the FG for breach, with further claims that there was a subsisting preservative order of the FHC Abuja ordering FG and its agencies to maintain status quo pending the determination of an earlier suit.34 But as in time past, the FG out rightly disobeyed the court orders with the announcement of the revocation by the NCP.
Although not much has been heard as regards the Suit, it was reported in 2019 that through the cooperation of stakeholders (traders) and the implementation of the Executive Order on the Ease of Doing Business, the complex generated N500m.35
4. Lekki-Epe Expressway Concession: (Lagos State Government (LASG) and Lekki Construction Company Limited (LCC))
In 2006, LASG signed a thirty (30) year PPP (BOT) arrangement with LCC36 for the re-construction of Lekki–Epe expressway, in order to ease perennial traffic gridlock in the Lekki axis. Seven years into the project, LASG decided to buy off the concession from LCC in order to save motorists from paying increased tolls on the ever busy road. LCC reportedly planned to raise the toll rates at the Lekki Phase 1 axis toll gate by 20% and also commence (new rate) toll collections at the Chevron axis toll gate, to raise funds for the completion of the expressway. Expectedly, this was attended by major public outcry. 37
LASG’s intervention meant it not only assumed sole control of the toll gates and fixing of rates, but also acquired the debts of LLC, in order to lighten toll burden on the populace.38 Being the first major State PPP in Nigeria the buy-out was also to send a comforting signal to potential PPP investors, whilst some argued the take-over was to ensure that the electorate does not translate its anger into action against the ruling party in Lagos State.39 Nonetheless, it was also a coup de grace in perception management of a PPP project. However, post-acquisition LCC has managed to successfully increase toll fares once, on grounds that it was necessary to enable the company meet its loan obligations to its local and foreign lenders.40
Subsequently, LASG went on to build and toll the landmark Lekki Ikoyi bridge, which has also offered succour to motorists, cutting their travel times. Payment by commuters to cross the bridge, despite toll increases shows willingness to pay for services – a fundamental underpinning on PPP in order to recover capital investment and returns.
5. Lagos-Ibadan Expressway Concession: (FG and Bi-Courtney)
Notoriously, when there is a change of government in Nigeria, contracts agreements of the previous administration may be subject to ‘review’ or ‘probes’, which are sometimes politically motivated, and not driven by public consideration. In this instance, President Yar’adua’s administration granted Bi-Courtney concession over the Lagos–Ibadan Expressway (the Expressway) to reconstruct, maintain and toll the road for 25 years. However, 3 years into the concession, President Jonathan’s administration cancelled the contract over claims of violation of the terms of the PPP agreement and Bi-Courtney’s failure to commence construction work in line with the concession.41
Other reported reasons for revoking the contract was that the agreement was allegedly lopsided in Bi-Courtney’s favour. Another allegation was of conflict of interest as Bi-Courtney’s majority shareholder was the Honorary Legal Adviser to President Yar’adua at the time the contract was awarded. It also appeared that the concession contract was either negotiated by inexperienced legal/transaction advisers on the FG side or sufficient attention was not paid to the negotiations on behalf of the FG, amongst many other issues.42
Bi-Courtney sued the FG for breach of contract vide improper revocation claiming inter alia, that: the road was not developed because its efforts to source for funds and resources to execute the project was frustrated by the FG, alongside being held back by bureaucratic bottlenecks at the Ministry of Works.43 Whilst the legal tussle was ongoing, the FG proceeded to construct the Expressway, via ‘traditional’ contract awards to Reynolds Construction Company Limited (RCC) and Julius Berger, for the Shagamu – Ibadan and Shagamu – Lagos sections respectively.
The unfortunate reality however was that whilst the PPP arrangement remained unexecuted, the Expressway was a source of grave hardship to travellers with resultant loss of productivity from long travel times, in addition to loss of lives and property through vehicle accidents, etc.
Nigerian PPP experience shows that the private sector players are usually better prepared for the contracting process. Thus, the need for proper negotiation and implementation support for government through robust advisory and technical teams cannot be over emphasised. Also conducts by public servants reflective of incompetence or conflicts of interest, should be thoroughly de-incentivised and sanctioned.
Part of the inadequate preparation presumably meant that the FG did not properly evaluate its project development options from the multifarious commercial/financial, legal/regulatory and political perspectives. Though the litigation between Bi-Courtney and the FG still drags in court, the Expressway has seen further completion, as at December 2019, construction on the inbound Lagos was completed and work has begun on the outbound Lagos.44 Ultimately, disputes like this do very little for investor confidence and will always have deleterious effects on efforts to showcase Nigeria as an attractive investment destination.
6. Tafawa Balewa Square Concession (TBS): (FG and BHL International (BHL))
In 2008, BHL entered into a 30 year concession for the redevelopment and management of a section of the TBS with the FG. However, shortly after the concession, LASG obtained a restraining order against BHL from further carrying out any activities on TBS. According to LASG, it was entitled to TBS, since the FG was no longer using the facility for public purpose for which the land was originally acquired. Accordingly, LASG claimed it should have the right of first refusal before the FG concessioned TBS to BHL.45
With an ongoing litigation since 2008, the project was stalled, thus impeding the commercially viability of TBS as a tourist, leisure and business destination, thereby stifling economic growth.
Whilst the ICRC and BPP were reportedly taking measures to resolve the conflict between BHL and the LASG, not much progress appeared to have been achieved in this regard.46 Most recent news however as at 2018 reported that the BPE was looking for transaction managers who will provide advisory services for the concession of the TBS.47 One can only hope that all issues are resolved and TBS can continue to function accordingly.
7. Apapa – Oworonsoki Expressway Road Concession: (LASG & Dangote Industries Limited ( Dangote) )
Irrespective of the various challenges and flaws of concession practice in Nigeria, there are a few positive examples, such as the Apapa-Oworonsoki expressway road concession between the FG and Dangote. In this creative concession, the FG handed over the Apapa-Oworonshoki end of the Lagos – Ibadan Expressway, covering 35 kilometres to the Dangote Group to rebuild using concrete, and getting a recompense in the form of a 10-year tax holiday.48 As its Corporate Social Responsibility (CSR) Dangote reportedly also offered 25 – 50% less than the next lowest bid for the project.49
The project commenced in 2018 and although the road experienced some challenges that temporarily stopped construction, work recommenced and it is reportedly expected to be completed by the end of 2020.50 In the long run, one can only hope that the purpose of the concession be achieved without any more scandals and conflict because of Nigeria’s generous history of scandalous concession arrangements.
C. Concessions: Some Developing Countries/Emerging Market Examples
Some developing countries have also embraced concession and they have mostly become the better for it. For instance, India concessioned the Delhi (2006), Mumbai (2006), Bengaluru (2008) and Hyderabad (2008) airports. These improved passenger experience and perception of India in the global market, whilst also enhancing revenue collection. Under the concession arrangement, the private operators would pay the state owned Airport Authority a specified share of revenue from their gross earning; as at 2017, the Indian government had realised about US$1.72 billion thereunder.51
Whilst India did not have an entirely smooth run on the concession arrangement, they have been able to identify their shortcomings and are factoring these into future projects.52 Due to the positives of concession practice in India, the Indian government announced its plans to concession some of its other existing airports.53 In 2020, the Airport Authority of India (AAI) announced it had signed concession agreements for the operations, management and development of Ahmedabad, Lucknow and Mangaluru airports.54
Similarly, South Africa (SA) has reportedly recorded several successful PPP projects one of which is the 1996 N4 Toll Road Project from Johannesburg, SA to Maputo, Mozambique. This project was financed through a combination of equity finance by the private partner, plus loan finance from a range of the major financial houses.55 On this project, the concessionaire was responsible for the financing, design, construction, rehabilitation, operation and maintenance of the road for thirty (30) years. The road facilitates enhanced economic cooperation between the two neighbouring countries by providing efficient transportation options, among others.
The success of the project was partly due to SA leveraging its rich experience in toll projects, the route itself being a well-established one before the project, etc. Its few challenges, such as complaints by commuters on the creation of toll on a formerly free road, damage to the road due to over-loading of trucks etc., were addressed by reducing toll fee and creating axle load control system to control damage.56
Nigeria’s developmental journey underscores the need for operational and functional public facilities, and bridging infrastructural gaps, which can be accelerated by involving the private sector players through PPPs. Therefore the FG and State Governments needs to be more proactive and ensure to wear commercial hats when entering into concession contracts.
PPP participants on both sides of the aisle, must acquire and deploy requisite execution capacity for their PPP projects. Reputational issues and investor sensitivity is critical on the part of government. Transactional mind set exemplified by LASG is likely to engender respect for the rule of law and sanctity of contract, thereby obviating negative effect of arbitrary contract revocations and policy flip flops. Essentially, Nigeria needs to learn from its past experiences and prevent repetition of previous mistakes in future arrangements.
The Nigerian PPP horizon is bright, given the need for accelerated development as our population continues to soar. ICRC and BPP would probably need to be more energetic in providing the necessary support to help the FG actualise its infrastructural delivery objectives whilst engendering investors’ confidence and trust.
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LeLaw Barristers & Solicitors
Titilade Adelekun Ilesanmi
LeLaw Barristers & Solicitors