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 was invited to provide 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 has 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.

Umahi subsequently outlined possible options for resolving the dispute. However, Olatunji’s review raises questions about the extent to which the concession agreement can be altered or terminated without strict adherence to the procedures stipulated in the contract.
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.
Already, the Benin-Asaba Expressway Concession Company Limited (BAECC) has warned that introducing another contractor to work on portions of the concessioned Benin-Asaba Expressway without first addressing the existing contractual framework could create overlapping responsibilities between the concessionaire and the new contractor.

The warning followed suggestions that another contractor could be engaged to reconstruct portions of the highway amid concerns over the condition of some sections of the road and the difficulties being experienced by motorists.
Speaking on the issue, the Chief Operating Officer of BAECC, Emmanuel Onwodi, maintained that the company is the concessionaire responsible for the road asset under a 25-year concession agreement approved by the Federal Executive Council in January 2023 and signed in May 2023.

He said the agreement defines the company’s rights and obligations, rather than making it merely a contractor engaged to construct the highway, noting that the concession was structured as a Design, Finance, Build, Operate and Transfer (DFBOT) arrangement.
According to him, the structure makes the project fundamentally different from a conventional government-funded road construction contract.
Onwodi argued that BAECC’s position was that the concession remained in force and that it had not relinquished any part of the corridor, stressing that any intervention should consider the existing concession agreement.

The COO, however, acknowledged that the concession arrangement did not shield BAECC from scrutiny, adding that the government retained the responsibility to ensure that the concessionaire met its contractual obligations.
Onwodi said where project milestones had not been achieved, the relevant shortcomings should be identified and corrective measures demanded, while engineering standards and the impact of construction activities on motorists should also be addressed.

He stressed that the government’s demand for performance and the concessionaire’s contractual rights should operate simultaneously, noting that accountability in a public-private partnership must be exercised within the framework of the agreement.

According to Onwodi, this is particularly important as Nigeria requires significant private-sector financing to close its infrastructure deficit, given the limitations of government revenue.
He said the outcome of the Benin-Asaba Expressway concession would, however, be closely watched by banks, infrastructure funds, pension funds, foreign investors and prospective concessionaires considering long-term investments in Nigeria.

Onwodi argued that investors committing capital to infrastructure projects lasting 20 or 25 years need confidence that contractual agreements will remain valid despite changes in political leadership.

He acknowledged the difficulties motorists were experiencing, maintaining that substantial construction activity had taken place, with billions of naira in private resources committed to the project.
He said the immediate concern of motorists remained the completion and usability of the road, but stressed that the way the project was resolved could have implications for future infrastructure concessions in the country.