Susan Abayomi
Senior Advocate of Nigeria (SAN), Abiodun Olatunji, has advised the Federal Government to exercise caution in handling the ongoing dispute over the concession of the 125-kilometre Benin-Asaba Expressway, warning against any unilateral termination of the 25-year agreement without strict compliance with its contractual provisions.
Olatunji gave the advice in a legal opinion on the concession arrangement and the dispute between the Federal Ministry of Works and the Benin-Asaba Expressway Concession Company Limited (BAECC).
His intervention comes amid growing concerns over the deteriorating condition of the highway and the Federal Government’s moves to secure emergency repairs while reviewing its relationship with the concessionaire.
The Federal Ministry of Works has accused BAECC of breaching several provisions of the concession agreement and has indicated that it is exploring termination options. The ministry has also moved to deploy contractors for emergency intervention on sections of the highway affected by the worsening road conditions.
However, Olatunji argued that concerns over the condition of the road, although capable of justifying urgent government intervention, should not automatically be treated as sufficient grounds for terminating the concession.
According to him, the circumstances surrounding abandonment, repudiation, unreasonable delay or other forms of default must be established in accordance with the terms of the agreement before termination can validly take place.
He said his review examined the Federal Government’s powers under the concession arrangement, the circumstances that could trigger termination and the distinction between emergency intervention and permanent termination of the concession.
Olatunji stressed that his opinion was based on a summary of the concession agreement made available to him and was therefore subject to the provisions of the complete contractual documents.
He specifically pointed to contractual safeguards relating to default notices, cure periods, step-in rights, termination, compensation and lender protections, among other provisions.
“Our considered opinion is that the Minister has no general or personal authority to revoke the concession at will,” the senior lawyer stated, noting that the contracting party is the Federal Government acting through the relevant ministry.
He further observed that the existence of ongoing construction activities could complicate any assertion that the concessionaire had completely abandoned the project or repudiated its contractual obligations.
At the same time, Olatunji recognised the government’s responsibility to protect motorists and the public where the condition of the highway presents an immediate danger.
He said the circumstances could justify “immediate and proportionate emergency intervention,” particularly where the concession agreement provides the Federal Government with step-in rights.
Such intervention, he explained, would ordinarily be directed at addressing an immediate threat to public safety while preserving the underlying contractual relationship unless the agreement provides a lawful basis for termination.
The lawyer also cautioned against relying solely on broad public-interest considerations as a basis for extinguishing contractual rights.
While public interest may support government measures aimed at protecting lives and property, he noted that it does not automatically remove contractual protections relating to compensation, notice periods, cure periods or lenders’ rights.
He added that a permanent takeover of the project, removal of the concessionaire, appointment of replacement contractors or a fundamental redesign of the project could go beyond the scope of emergency intervention unless carried out through mechanisms recognised by the agreement.
These mechanisms, he said, could include a negotiated amendment, a valid change in project scope, a termination-for-convenience provision where applicable and properly compensated, or a termination process based on established contractual default.
The legal opinion comes against the backdrop of mounting difficulties on the Benin-Asaba corridor, where motorists have experienced prolonged traffic congestion and worsening road conditions.
The Federal Government has attributed the situation to alleged shortcomings in the concessionaire’s performance, while BAECC has disputed suggestions that the project was abandoned and has cited factors including heavy rainfall, increased traffic and the challenges involved in reconstructing a major highway while keeping it open to motorists.
The Ministry of Works has also alleged that sections of existing asphalt were removed without adequate drainage arrangements, contributing to further deterioration of the road. The concessionaire and other parties involved in the project have offered differing accounts of the circumstances surrounding the delays and road conditions.
The Benin-Asaba project forms part of the Federal Government’s Highway Development and Management Initiative (HDMI), which was designed to attract private-sector financing and technical expertise into the development and management of federal highways.
Records contained in a 2026 transport-sector study prepared for the Japan International Cooperation Agency (JICA) identify the Benin-Asaba concession as a 25-year arrangement running from May 2023 to May 2048 and list the project as being under implementation.
The Federal Executive Council approved the concession in January 2023, while the concession agreement was signed in May of the same year. The arrangement was structured as a Design, Finance, Build, Operate and Transfer (DFBOT) project.
The highway runs from the Ring Road Roundabout in Benin City to Summit Junction in Asaba, Delta State, serving as an important transport link between the South-South, South-East and other parts of Nigeria.
The dispute has wider implications for Nigeria’s infrastructure-concession framework, particularly as government agencies and private investors continue to rely on long-term public-private partnerships to finance major infrastructure projects.
For Olatunji, the immediate priority should therefore be to separate the need for urgent road repairs from the question of whether the concession itself should be terminated.
The legal opinion suggests that government intervention to protect road users and the enforcement or termination of contractual rights can be pursued within the framework of the concession agreement, provided the relevant procedures and safeguards are observed.
The ultimate resolution will depend on the full terms of the concession agreement, the evidence relating to any alleged defaults and the contractual mechanisms available to both parties.
