FG directs NPA to cancel deal with Atiku-owned Intels

The cancellation of the agreement is expected to cost Intels millions of dollars.

The Federal Government has ordered the Nigerian Ports Authority (NPA) to terminate the boats pilotage monitoring and supervision agreement it has with Intels Nigeria Limited, rendering the agreement void ab initio.
The integrated logistics and facilities services provider in the maritime and oil and gas logistics sectors is co-owned by former Vice President, Atiku Abubakar and Italian businessman, Gabriel Volpi.
The government's directive was communicated through the office of the Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami who wrote a letter to the Managing Director of the NPA, Ms. Hadiza Bala-Usman.
In the letter, the AGF said the agreement runs counter to the Nigerian constitution especially with the implementation of the government's Treasury Single Account (TSA) policy.
The AGF said the NPA should exit the agreement and adopt the TSA policy in collecting monies due to the NPA.
In the letter dated September 27, 2017, AGF Malami said, "I refer to your letter dated 31st May 2017, ref: MD/17/MF/Vol.XX/583 in respect of the above subject matter wherein you sought clarification on the legal issues implicated by the continuous implementation of the Managing Agent Contract Agreement dated 11th February 2010 executed between the Nigerian Ports Authority (NPA) and Intels Nigeria Limited for the provision of boats pilotage operations, in the light of the Federal Government of Nigeria's Treasury Singe Account (TSA) policy.
"Upon my review of your letter under reference and the relevant agreements, I have been able to conclude inevitably that the terms of the agreement as agreed by parties and the dynamics of its implementation which permits Intels to receive revenue generated on behalf of NPA ab initio, clearly violates express provisions of Sections 80(1) and 162(1) and (10) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended).
"It is thus curious that parties did not avert their minds to the above provisions of the constitution whilst negotiating the agreement.
"The inherent illegality of the agreement as formed has since been expounded by the TSA policy issued by the Head of Service of the Federation on behalf of the Federal Government of Nigeria directing all ministries, departments and agencies to collect payment of all revenues due to the federal government or any of her agencies through the TSA.
"The objective of the presidential directive (TSA policy) in exercise of the executive powers of the president under Section 5 of the 1999 Constitution (as amended) was in furtherance of the spirit and intent of Sections 80 and 162 of the constitution and to aid transparency in government revenue collection and management.
"NPA being an agency of the federal government is bound by the TSA policy and has not howsoever been exempt therefrom.
"Due to the constitutional nature of the TSA, where there is a conflict between the TSA and the terms of the agreement, the TSA shall prevail.
"Therefore all monies due to the NPA currently being collected by Intels and any other agents/third parties on behalf of NPA must henceforth be paid into the TSA or any of the sub-accounts linked thereto in the Central Bank of Nigeria (information of the account will be communicated in due course) in accordance with the TSA policy.
"For the avoidance of doubt, the agreement for the monitoring and supervision of pilotage districts in the Exclusive Economic Zone of Nigeria on terms inter alia that permits Intels to receive revenue generated in each pilotage district from service boat operations in consideration for 28% of total revenue as commission to Intels is void, being a contract ex facie illegal as formed for permitting Intels to receive federal government revenue contrary to the express provisions of Sections 80(1) and 162(1) and (10) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which mandates that such revenue must be paid into the Federation Account/Consolidated Revenue Fund.
"In the premise of the above, the conflict between the agreement and the TSA policy presents a force majeure event under the agreement, and NPA should forthwith commence the process of issuing the relevant notices to Intels exiting the agreement which indeed was void ab initio."
The deal had meant that Intels collected required pilotage fee from ship owners on the NPA's behalf and retained 28% of the revenue as commission for the services rendered.
The cancellation of the agreement is expected to cost Intels millions of dollars as some might see it as a calculated move against Atiku who is expected to contest for the 2019 presidential elections as a potential opponent for President Muhammadu Buhari.