Sunrise Power and Transmission Company Ltd (Sunrise), in its defence of alleged bribe payments funnelled to Nigerian government officials, attempted to frame the transactions as a reflection of “Nigerian culture”, according to details of the ICC Tribunal award reviewed by PREMIUM TIMES.
The defence followed Nigeria’s position that payments made by Leno Adesanya, the major promoter of Sunrise Power Ltd, to key public figures named in the controversial deal constitute bribes offered with the intention of corrupting the officials and manipulating due process in contract awards.
|
|
Sunrise Power and Transmission Company Ltd made its position known through its expert witness, Sope Williams, a professor and an anti-corruption expert, who testified that the facts underlying Nigeria’s corruption allegations should be considered against the background of the specific Nigerian cultural context.
“Cultural differences exist […] and are relevant to the understanding of the transactions,” the expert was quoted as saying in the 616-page award document.
|
|
|
|---|
But in its response to the “culture” claim, Ebenezer Obadare, a senior fellow for Africa studies at the Council on Foreign Relations (CFR) and expert for Nigeria in the arbitration, argued that evidence of custom or culture is legally inadmissible under Nigerian law to justify corrupt dealings involving public officials. The Nigerian team cited Section 60 of the Corrupt Practices and Other Related Offences Act, 2000, which explicitly states that evidence showing a gratification is “customary” is inadmissible.
Mr Obadare, a professor, argued that Nigerian culture cannot be used to justify alleged acts of bribery or corruption.
In its verdict, the tribunal posited that Nigeria emphasises that Sunrise’s expert witness, Mrs Williams, “confirmed that corruption is ‘endemic’ and ‘a big problem’ in Nigeria and that she agrees with Nigeria’s expert, Dr. Obadare, that culture cannot be used to justify the alleged acts of bribery or corruption.”
Stay Ahead with Premium Times
Follow us on Google News and never miss breaking stories, investigations, and in-depth reporting.
Add as a preferred source on Google
“According to Nigeria, Prof. Williams testified on matters that go beyond her expertise as an anti-corruption expert and in any case, it (Nigeria) argues that evidence of custom is inadmissible in Nigeria as a defence to corrupt dealings involving Nigerian public officials.”
Details of the ICC award also showed that in its subsequent demands, Mr Adesanya and his company, Sunrise, requested that Mr Obadare’s evidence be dismissed as irrelevant, but the Tribunal disagreed with their position.
“Fifth, with respect to the evidence of Dr. Obadare, the Tribunal is not satisfied that his evidence should be dismissed as irrelevant because it is said to be based on a distortion of Prof. Williams’ evidence, as Sunrise and Mr. Adesanya contend,” the Tribunal posited.
“The Tribunal fully appreciates that the thrust of Prof. Williams’ evidence is that the facts underlying Nigeria’s corruption allegations should be considered against the background of the specific Nigerian cultural context, while the essence of Dr. Obadare’s evidence is that Nigerian culture cannot be used to justify the alleged acts of bribery and corruption. Irrespective of how the Parties’ experts have construed each other’s evidence and how they may have simplified it for the sake of argument, the Tribunal fully appreciates the different perspectives that Prof. Williams and Dr. Obadare have conveyed and is able to independently assess the value of their evidence in the context of each specific corruption allegation.”
In its evaluation of specific transactions, the Tribunal concluded that these payments raised serious red flags of corruption that could not be neutralised by cultural contesed or informal custom.
“To conclude with respect to the corruption allegations in relation to the GPEA and the associated Terms of Settlement of the Nigerian Court Litigation about the alleged award of a BOT contract to Sunrise in 2003,” the document read, the Tribunal said that all the alleged bribe payments “do raise serious red flags that cannot be neutralised by other evidence on the record of this arbitration.”
The payments
Some of the controversial payments made by Sunrise and Mr Adesanya that were highlighted in the case include the payment on 23 November 2015 of N10 million to Abdullahi Yola, the Solicitor-General of the Ministry of Justice, who advised on, negotiated and signed the General Project Execution Agreement (GPEA) and the Terms of Settlement in 2012.
Also mentioned were three payments between May 2015 and January 2016 of N25 million (N25,010,000) to the company of the son of Dere Awosika, the Permanent Secretary of the Ministry of Steel and Power when the GPEA and the Terms of Settlement were negotiated and signed in 2012.
Similarly flagged as suspicious is the payment on 16 December 2014 of $1.74 million to the son of Sambo Dasuki, the National Security Advisor of the Nigerian Government when the GPEA and the Terms of Settlement were negotiated and signed in 2012.
Also listed in the case as one of the controversial transactions initiated by Mr Adesanya was a $500,000 payment made by Sunrise Power promoter Leno Adesanya to Jennifer Douglas Abubakar, the ex-wife of former Nigerian vice president, Atiku Abubakar, in 2003. Mr Adesanya, in his defence of the transaction, argued that it was a foreign exchange transaction but the tribunal said the circumstances surrounding the payment raised “significant red flags” even as it made clear that it found no evidence that Atiku actually used his official position to secure the Mambilla contract for Sunrise Power.
Another payment was also made to Olu Agunloye, a former minister of Power and Steel, which he claimed he received as part of “medical expenses”.
Background
On Thursday, an award was issued in favour of Nigeria by an International Arbitration Tribunal under the auspices of the International Chamber of Commerce (ICC) in Paris, which rejected the claims in the arbitration instituted by Sunrise Power and Transmission Company Ltd (Sunrise).
The company had made a claim against the Federal Republic of Nigeria, demanding $680 million as a settlement sum and interest in respect of another arbitration in which it is claiming over $2.7 billion in compensation and interest.
READ ALSO: Tinubu reacts as Nigeria wins arbitration against Sunrise Power
The claim relates to disputes associated with the development of the 3,960 MW Mambila Hydroelectric Power Project in Taraba State.
The tribunal, in its verdict on Thursday, directed Sunrise and its promoter to refund Nigeria’s legal fees of $11.8 million. It also rejected Sunrise’s claim for an order that Nigeria should pay the company $400 million in satisfaction of the settlement sum of $200 million and the default sum of $200 million.
The tribunal insisted that Mr Adesanya, the promoter of Sunrise, is bound by the arbitration agreement with Nigeria pursuant to the settlement agreement, adding that it has jurisdiction over Nigeria’s counterclaim against him and his firm.
On Sunday, insiders told this newspaper that the Economic and Financial Crimes Commission (EFCC) has set up a team to investigate individuals named in alleged shady deals involving Mr Adesanya and his company, Sunrise Power and Transmission Company Ltd (Sunrise). PREMIUM TIMES’ review of the tribunal’s award showed that many Nigerian politicians and individuals who held public offices were named as associates or officials who had dealings with Mr Adesanya, some in circumstances the tribunal considered shady, corrupt and questionable. (https://www.premiumtimesng.com/news/top-news/911121-exclusive-efcc-sets-up-team-to-investigate-atiku-malami-others-named-in-icc-ruling-on-mambilla-deal.html)
The officials include Atiku Abubakar, his then-wife Jennifer Douglas, Abubakar Malami, Olu Agunloye, Sambo Dasuki, his son Abubakar Dasuki, Abdullahi Yola, and Dere Awosika, among others.
Atiku has since denied being indicted by the tribunal and said he was not responsible for awarding the contract, but failed to address other concerns raised in the verdict.
Already, Messrs Malami and Agunloye are being tried by the anti-corruption agency on sundry charges of misconduct and financial crimes, some in relation to the deal.
Discover more from Premium Times Nigeria
Subscribe to get the latest posts sent to your email.
More News
