FG orders immediate intervention, re-concessioning
Felix Omoh-Asun in Benin City
Senior Advocate of Nigeria (SAN), Abiodun Olatunji, has cautioned the federal government against recent pronouncements and actions concerning the state of the Benin-Asaba Expressway and the ongoing intervention activities on the highway.
He advised that the government should tread cautiously in considering any revocation of the subsisting concession agreement governing the expressway. According to him, the absence of evidence of abandonment, repudiation, or unreasonable delay in the execution of repair works may not constitute sufficient grounds for the unilateral revocation of the 25-year concession.
Olatunji provided his legal opinion on the issues surrounding the Benin-Asaba Expressway concession, including the dispute between the Federal Ministry of Works and the Benin-Asaba Expressway Concession Company Limited (BAECC).
In formulating his opinion, he reviewed a summary of the Concession Agreement and assessed the relevant contractual and legal implications.
His review considered, among other things, the extent of the federal government’s powers to intervene in the project, the circumstances under which the concession may be terminated, and the distinction between emergency intervention measures and termination of the concession itself.
Importantly, his opinion was subject to the provisions of the full Concession Agreement, including clauses relating to default, cure periods, step-in rights, termination, compensation, lender protections, and other contractual safeguards governing the relationship between the Federal Government and the concessionaire.
The legal opinion comes amid an escalating dispute between the Federal Ministry of Works and BAECC over the condition and reconstruction of the 125-kilometre highway. The Ministry had alleged breaches of certain provisions of the concession agreement by the concessionaire and has reportedly proposed a mutual termination of the arrangement.
Olatunji cautioned that while the federal government’s concerns regarding the condition of the Benin-Asaba Expressway may justify urgent intervention, they may not, in themselves, provide a legal basis for the unilateral revocation of the concession.
According to the ministry, deteriorating road conditions have contributed to severe gridlock and hardship for motorists travelling between Benin and Asaba. Minister of Works, David Umahi, had previously expressed dissatisfaction with the state of the project following an inspection of the road alongside Edo State Governor Monday Okpebholo.
In his opinion, Olatunji stated that the Minister of Works does not possess a general or personal power to revoke the concession at will, noting that the contracting party is the federal government acting through the ministry.
“Our considered opinion is that the minister has no general or personal authority to revoke the concession at will,” the senior lawyer stated.
He further argued that the fact that construction activities are ongoing could make allegations of abandonment, repudiation, or total failure of performance more difficult to establish. The legal opinion nevertheless recognised the federal government’s responsibility to intervene where road conditions pose a danger to motorists and the public.
According to Olatunji, the condition of the highway may justify “immediate and proportionate emergency intervention,” particularly where the concession agreement grants the government step-in rights.
He explained that any emergency step-in action would ordinarily be limited to addressing the immediate danger while preserving the underlying concession arrangement.
Meanwhile, President Bola Tinubu has vowed to put an end to the suffering of commuters on on the Benin-Asaba Road.
The president, who made this promise on Thursday, has ordered an emergency intervention on the 125-kilometre Benin-Asaba Road following worsening deterioration, severe gridlock and prolonged delays experienced by motorists and communities along the corridor.
Represented by the Edo State Governor, Monday Okpebholo, the President said the intervention was aimed at responding to the hardship suffered by road users on the critical highway linking Edo and Delta states with other parts of the country.
The President spoke in Benin during the inauguration of the emergency intervention on the road.
He said the Benin-Asaba corridor had been concessioned under a Public-Private Partnership arrangement to the Benin-Asaba Expressway Concession Company (BAECC) with the expectation that the road would be completed within three years.
Tinubu, however, said the pace and manner of execution had fallen short of the terms of the concession agreement, resulting in worsening road conditions and hardship for motorists.
“We are here today not to witness the commencement of another road project. We are witnessing the response of a government that has heard the cries of its people and has chosen to act. That is why today’s intervention is truly a rescue operation,” he said.
On his part, Okpebholo, on behalf of the people of Edo, thanked President Tinubu for responding to the concerns of commuters and communities along the corridor.
He also commended the Minister of Works, David Umahi, for his commitment and personal intervention in efforts to restore the road. The governor urged the contractors handling the emergency works to ensure quality construction, comply strictly with approved specifications and complete the work within the agreed timeframe.
“To the new contractor, this is a road of great economic importance to Edo, Delta and Nigeria.
We expect quality work, strict compliance with the approved project specifications, and delivery within the agreed timeframe, there must be no excuses,” he said.
Okpebholo also appealed to communities and commuters who had endured prolonged gridlock and delays to remain patient, saying their complaints had been heard.
He said the intervention should mark the beginning of the end of the hardship experienced on the Benin-Asaba corridor.
Umahi said the Federal Ministry of Works had taken over the immediate palliative rehabilitation of the road in the interest of the public. He clarified that the temporary palliative works were not awarded to Hi-Tech or any other contractor, explaining that the ministry hired equipment for the emergency intervention.
According to him, more than 50 pieces of equipment had been deployed to the road, with additional equipment expected to be mobilised. Umahi said the Federal Government decided to intervene after efforts to secure the cooperation of the concessionaire failed.
He explained that the concession agreement required the Federal Government to obtain the concessionaire’s permission before intervening, but the company declined the options proposed by the ministry.
The minister said the government consequently directed major contractors to work on the three sections of the Benin-Asaba Road to restore failed portions and ease the hardship faced by motorists.
He said the entire route would subsequently be redesigned for reconstruction using reinforced concrete pavement. Umahi said the emergency works would also address sections where existing asphalt had been removed, leaving the road base exposed to rainfall and further deterioration.
The minister had previously raised concerns over the performance and handling of the road by the concessionaire as the Federal Government moved to engage other contractors to restore failed sections.
On the realignment of the Coastal Highway, Umahi said the route would commence from the Benin bypass through Delta and Bayelsa to Eleme Junction. He said the project was intended to divert traffic from the state capital and improve connectivity with Edo and other parts of the Niger Delta.
Also speaking, Delta State Governor Sheriff Oborevwori, represented by the Commissioner for Information, Charles Aniagwu, said the Benin-Asaba corridor had remained a major challenge for residents of Delta and Edo.
Oborevwori commended Tinubu for intervening to restore the road, which he described as an important link for commerce and cultural ties between the two states.
“For us in Delta, this intervention is a welcome development because this road helps to connect commerce, culture and bring us together as a people that once existed as one state. This road needs to come back alive because we have all felt the embarrassment of the deplorable condition of the road.
“The decision to bring back life to this road is a decision we must appreciate President Tinubu for and indeed it shows that he listens,” he said.