Topewide: Our Stand on the Purported National Theatre Takeover

The news and social media have been inundated with reports of the purported handover of the National Theatre and the adjoining fallow land to the Central Bank of Nigeria (“CBN”) and the Bankers Committee on Sunday, February 14, 2021 by agents/agencies of the federal government of Nigeria, purportedly based on the authority of Federal Executive Council.

Friends and associates of Topwide Consortium as well as others with deeper knowledge of the facts and circumstances have been inundating us with phone calls and messages as to whether the suit we initiated over disturbance of our rights as concessionaire of the National Theatre had been concluded. We are using this opportunity to reiterate our answer and to inform the unwary sections of the general public that the suit is very much pending and for which we have retained two commercial law Senior Advocates of Nigeria.

And indeed, if the conspirators hiding under the cloak of federal government agencies frustrate the resolution of the issue in Nigerian courts, as they seem determined to do, then they should be ready to give account in the courts of the home nation of any of the consortium members, including the United States.

As a matter of fact, we filed our suit since December 2019, with the CBN, the Minister for Information, Tourism & Culture (Liar Mohammed), Access Bank Plc and Herbert Wigwe representing the Bankers Committee as some of the Defendants.

Other defendants are the Board of the National Theatre, Infrastructure Concession Regulatory Commission (“ICRC”) and Attorney-General of the Federation. The case was to have come up on 15th December, 2020 but the Federal High Court Lagos which is hearing the case did not sit and it later adjourned the case to 18th March 2021.

Meanwhile, our lawyers had also filed a motion for interlocutory injunction to restrain any interference with the subject of the suit, and the motion is equally pending.
It is noteworthy that the purported handover of the National Theatre to the CBN and its cohorts is but a reprise of an earlier same celebration of lawlessness on Sunday July 12, 2020, when the defendants caused the witness and reportage by the global press of the orchestration of the purported handover amongst themselves of the National Theatre Complex premises, Iganmu, Lagos and the adjoining lands; with the public cynically misled with tales of their grandiose plans for the National Theatre Complex and, consequentially, the hospitality and entertainment industries in general.

However, we were constrained to set the record straight by statements as published in several newspapers like ThisDay of 23rd July, 2020; Daily Trust of 23rd July, 2020, and Punch of 24th July, 2020.

Our lawyers had also brought the issue of the outrageous contempt of the judicial process to the attention of the Court, but it decided in its wisdom that we had not established such egregious act of contempt, details of which were even captured in news and electronic media, including NTA news.

The CBN, clearly meaning to mislead the Court, resorted to brazen perjury by asserting in paragraph 4.4 of its counter-affidavit to our application (deposed to one of its Senior Managers, Mr. Daniel Inyang) that:
“the alleged hand over of the National Theatre Iganmu and/or its adjourning fallow land to the 5th Defendant (CBN) could be as a result of media misinformation and sensationalism as the National Theatre was not handed over to the 5th Defendant.”

Indeed, several newspapers (including ThisDay, New Telgraph and The Nation) which reported the debacle were understandably stunned by the volte-face, and highlighted CBN’s perjurious assertion in their coverage of the Court’s proceedings of 24th July, 2020.

It is apposite to point out that the essential facts have not changed beyond the piling of arrogance atop brazen illegalities by the CBN, The Bankers’ Committee and Lai Mohammed. It suffices to advert to some of those facts which, by the way, are reposed in the public consciousness. It is axiomatic that the National Theatre Complex had for over two decades now suffered great neglect and dilapidation that it became a national embarrassment. There is also the problem of non-development of other ancillary facilities on the surrounding fallow land. The problem, unexpectedly, was paucity of funds for such humongous projects. It made sense therefore to enlist the private sector in solving the problem. However the attempt at privatization of the Complex by the Bureau of Public Enterprises[BPE] during the regime of President Obasanjo failed spectacularly.

It was against this backdrop that the federal government, upon the grant of Presidential approval, decided in 2012 to concession the fallow lands to private sector operators for the much needed substantial development. With the reputation of Nigerian government for its disregard for agreements and contractual commitments, it was an obvious challenge to get genuine investors, especially those from overseas, whose participation was needed in view of the envisaged investment of over $2 Billion. Statutory responsibility for the concession had now become vested on CRC and which in May 2013 issued to the Minister of Tourism and Culture (the 3rd Defendant) a letter of “No Objection” for “the development of complementary facilities to the National Theatre via Public Private Partnership (PPP) Procurement.” This was after their appointment of BGL Limited as the Transaction Adviser.

To woo genuine investors, an international “Road Show” was embarked upon by some top officials, including ranking officers of the National Theatre, ICRC and BGL as well as some members of the National Assembly. The road show covered trips to Lagos, Abuja, Johannesburg, Dubai, London, New York etc. We would later learn of the huge cost of this road show which, adjusting for inflation and especially currency depreciation, stands at over N500 Million in today’s value. In the subsequent open bid conducted in strict compliance with the provisions of the ICRC Act the Topwideapeas Consortium won handily and were duly announced the concessionaire for the development of the fallow lands surrounding the National Theatre Complex. We are contracted to develop on the fallow lands an eco-friendly grand mini-city housing two five star hotels, theme park, arts arcades, office complexes shopping malls and a high rise car par, as well as providing appropriate connections to the Lagos light rail Metro Blue Line station planned for the National Theatre Complex.

It is noteworthy that our plans-backed by verified financial capability-offered a glimpse of a futuristic mini-city which on completion would relegate the Theatre Complex to a ghetto at its center, so much so that National Theatre senior officers galvanized the other concerned Federal Government agencies into insisting that we should also assume responsibility for a comprehensive rehabilitation and upgrading of the Complex to synchronize with the planned new structures. This inevitably involved extra costs but which we agreed to with the necessary modifications to the contract. And the agreement is that upon completion of the rehabilitation the upgraded National Theatre would be handed over to the Federal Government for the continued management by the Board of the Complex.

The Attorney-General of the Federation signed off finally on the concession agreement on May 3, 2017. With all the processes concluded, the Minister for Information, Culture & Tourism insisted on the otherwise superfluous formal presentation of the contract details to the Federal Executive Council and then inexplicably refused to do so. By the time we had resolved, under the superintendence of the Vice President (who at the material time was acting for the President) the Information Minister’s contrived and parochial obstacles, eighteen months had elapsed and the formality of public signature and presentation got caught up and suspended by the distraction of the prelude and immediate aftermath of the 2019 general elections.

In our bid to push the transaction through the remaining formalities in the third quarter of 2019 we discovered that the process had slipped off the Vice President’s control. As we were trying to make sense of the incoherent and bizarre signals from officialdom, there came the news in October 2019 of plans for the takeover of the National Complex and adjourning fallow lands by the CBN and the Bankers Committee. Our lawyers on our instructions wrote letters-dated October 24, 2019- to all the concerned Federal Government agencies/agents, i.e. the Minister for Information, Tourism & Culture, The National Theatre Management Board, ICRC, CBN Governor and Mr. Wigwe (Chairman of the Bankers Committee) to desist from tampering with our concession contract.

None of the officers/agencies ever replied the letters and shunned our entreaties for meetings to clear whatever misunderstanding that informed their misconceived actions.

We then had no option but make recourse to litigation. Conscientious public servants in the relevant agencies are as frustrated as they are alarmed at the bizarre turn of events which our investigations revealed to be the outcome of a seeming conspiracy of some of the visible confederates and shadowy puppeteers abusing their temporary powers and ability to control and compromise institutions and agencies of state for selfish ends. It is noteworthy that the N25 Billion the CBN claims it would spend in revamping the Complex is from public funds. It is common knowledge that the Federal Government was already broke and debt-plagued even before the crippling corona pandemic; borrowing heavily to meet recurrent expenditures like payment of staff salaries.

Meanwhile, we had mobilized direct local and foreign investments in excess of $2 Billion under the concession agreement. It is in the foregoing light that one of our claims in the case is for:

“A declaration that it is contrary to public policy and constituting a misappropriation of scarce public funds for [CBN] to divert public funds towards any project concerning the National Theatre Complex…when the plaintiff and its partners and privies have mobilized local and foreign private investment into developing the complex and surrounding lands into a grand mini city on a scale entirely beyond the legitimate capacity of [CBN].”

There are too many gaps in CBN’s “intervention” tale; too many things they are not telling Nigerians. Assuming it actually spends N25 billion to develop the facilities, to who would they be handed over to manage on completion? Or would they be managed by CBN? Under what law or arrangement is it purporting to takeover the Complex, especially without the superintendence and authority of ICRC? Is it not scandalous that a concession agreement birthed by a rigorous and transparent bidding process is whimsically jettisoned for an extremely murky, opaque, wasteful and uneconomical arrangement that is the antithesis of due process? Yet Lai Mohammed (the 3rd Defendant in our suit) would pretend that he does not know why Transparency International now has Nigeria as the most corrupt country on earth.

Finally, do CBN and FGN intend to render waste the billions of naira expended on the bid and related activities and, to boot, incur even greater costs [wastage of public funds] in probable liability to us and our foreign partners? How about the incalculable damage to Nigeria’s reputation on foreign investments? The business communities in the mega cities visited during the international Road Show were given profuse assurances of compliance with due process and safety of their investments. Would we continue to wonder why foreign investors would rather set up shop in Ghana, or just about any other location in Africa, rather than Nigeria? What of the contempt and ridicule to which our courts have been reduced CBN and its cohorts by appropriating property which is the subject of a pending suit involving Nigerian and international business concerns? Is it now beyond doubt that due process and rule of law have taken flight from Nigeria and supplanted by executive lawlessness and impunity?