Benin-Asaba Expressway: SAN Urges Caution Over Possible Concession Revocation

Senior Advocate of Nigeria (SAN), Abiodun Olatunji, has urged the Federal Government to exercise caution in dealing with the ongoing dispute over the 25-year concession for the Benin-Asaba Expressway.
Olatunji, who provided a legal opinion on the concession arrangement, said the government should not unilaterally revoke the agreement without establishing the contractual grounds and following the procedures provided under the concession.
The legal opinion comes amid a dispute between the Federal Ministry of Works and Benin-Asaba Expressway Concession Company Limited (BAECC) over the condition and reconstruction of the 125-kilometre highway.
According to Olatunji, the absence of evidence establishing abandonment, repudiation or unreasonable delay in the execution of repair works may not, by itself, provide sufficient grounds for unilateral revocation of the concession.
He said his review considered the Federal Government’s powers to intervene in the project, circumstances under which the concession could be terminated, and the distinction between emergency intervention and outright termination of the concession.
However, Olatunji stressed that his opinion was based on a summary of the Concession Agreement made available to him and remained subject to the provisions of the complete agreement and related contractual documents.
The lawyer specifically stated that the Minister of Works does not have a general or personal authority 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,” Olatunji stated.
He also noted that ongoing construction activities could make allegations of abandonment, repudiation or total failure of performance more difficult to establish.
While acknowledging the deteriorating condition of the highway, Olatunji said the circumstances could justify “immediate and proportionate emergency intervention” where necessary to protect motorists and the public, particularly if the concession agreement provides for government step-in rights.
He explained that emergency intervention would ordinarily address immediate risks without automatically terminating the underlying concession.
The legal opinion further noted that broad public-interest considerations, on their own, may not constitute a contractual basis for terminating the agreement. It said contractual provisions relating to compensation, cure periods, lender protections and other safeguards would still need to be considered.
Olatunji added that a permanent takeover of the project, removal of the concessionaire, redesign of the route or appointment of replacement contractors could go beyond a limited emergency intervention unless carried out through mechanisms provided under the agreement.
These mechanisms, he said, could include a negotiated amendment, valid change in scope, termination-for-convenience provisions accompanied by compensation, or a properly executed default-termination process.
The legal opinion comes as the Federal Government continues to express concerns about the condition of the Benin-Asaba Expressway. Minister of Works David Umahi has previously criticised the state of the highway following an inspection with Edo State Governor Monday Okpebholo.
The Ministry has alleged breaches of provisions of the concession agreement and has reportedly proposed a mutual termination of the arrangement.
BAECC, however, has disputed suggestions that the project has been abandoned, pointing to ongoing earthworks, drainage works, asphalt laying, carriageway expansion and other construction activities along sections of the corridor.
The concession agreement dates back to May 23, 2023, following Federal Executive Council approval on January 16, 2023. The project operates under a Design, Finance, Build, Operate and Transfer (DFBOT) model with a 25-year concession period, including the construction phase.
A 2026 transport-sector study prepared for the Japan International Cooperation Agency (JICA) records the concession as running from May 2023 to May 2048.
The highway stretches from the Ring Road Roundabout in Benin City to Summit Junction in Asaba, serving as a major transportation link across parts of southern Nigeria.
The dispute has intensified amid prolonged traffic congestion and deteriorating road conditions, particularly during the rainy season. BAECC has attributed some of the challenges to heavy rainfall, increased traffic volumes and the complexities of reconstructing a major highway while keeping it open to motorists.
The disagreement also has wider implications for Nigeria’s Highway Development and Management Initiative (HDMI), under which private-sector capital and expertise are being attracted to federal highway development and management.
Olatunji said the government could pursue urgent remedial works while addressing the contractual issues through the mechanisms provided under the concession agreement.
He emphasised that his conclusions were provisional because they were based only on documents made available to him and would require further review of the complete Concession Agreement and related documents.