Nigeria won’t be soft target for predatory litigation, arbitration

The Attorney-General of the Federation, Lateef Fagbemi, has said that Nigeria will not be a soft target for predatory litigation and arbitration.

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Mr Fagbemi, a Senior Advocate of Nigeria, said this in a statement in Abuja on Tuesday, reacting to Nigeria’s victory in the International Arbitration instituted by Sunrise Power and Transmission Company Limited (Sunrise) and its principal, Leno Adesanya.

He noted that the verdict was a complete and resounding vindication of Nigeria’s position that Sunrise’s entire claim should be totally rejected.

The News Agency of Nigeria recalls that the International Chamber of Commerce Tribunal in Paris, France, delivered the decision on 17 September, giving a landmark victory to Nigeria against Sunrise.

The arbitration concerned the 3,050 megawatt Mambilla Hydroelectric Power Project (Mambilla Project), one of the largest and most strategically important infrastructure projects in Nigeria’s history.

In the arbitration, Sunrise demanded $400 million (comprising a settlement sum and a default sum of $200 million each) and interest at ten per cent per annum compounded daily in addition to its pending claim of over $2.7 billion in a separate, parallel arbitration.

Mr Fagbemi noted that for over two decades, Sunrise’s relentless litigation and arbitration against Nigeria held the progress of the vital project hostage.

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“It began with the claim of an alleged Build-Operate-Transfer contract in 2003, followed by court proceedings in 2007, and continuing through further arbitrations.

“The financing of the Mambilla Project by the China Export-Import Bank was expressly conditioned on the resolution of these disputes. As a result, the project has been unable to achieve financial close, depriving Nigeria and its people of the enormous economic benefits of 3,050 megawatts of clean, renewable hydroelectric power.

“The cost of this delay measured in lost power generation, foregone industrial output, and continued energy poverty, is incalculable,” he added.

He said the tribunal found that the settlement agreement and its addendum were not binding on Nigeria because the former Nigerian ministers who signed them lacked the requisite authority to commit and bind the federal government without presidential approval.

“In addition, the settlement agreement was found to be a product of corruption and a violation of Nigerian public policy which made it unenforceable.

“The tribunal also found that Adesanya had engaged in a decades long campaign of bribery and corruption often involving very large payments to several senior Nigerian government officials connected to the Mambilla Project.

“The corrupt scheme, orchestrated by Adesanya extended to the settlement agreements with the tribunal specifically finding that a corrupt deal was in fact reached between Adesanya and the erstwhile senior Nigerian officials who signed the settlement agreement which formed the basis of the present arbitration against Nigeria.”

He said the tribunal noted that Mr Adesanya’s pattern of corrupt dealings extended back to the very origins of the Mambilla dispute.

“This pattern forms what the tribunal described as an established modus operandi of engaging with influential Nigerian government officials through financial incentives.

“Consequently, Sunrise and Adesanya were ordered to bear the overwhelming majority of costs of 75 per cent of Nigeria’s legal fees and expenses, plus interest at 10 per cent per annum compounded annually.

“The tribunal expressed the hope that this would deter Adesanya and his companies from bringing further frivolous legal proceedings against Nigeria.”

He acknowledged the leadership efforts of President Bola Tinubu who has consistently maintained the position that under no guise should Nigeria succumb to fraudulently contrived contractual agreements and any adverse claims arising therefrom.

“I also wish to express my immense appreciation to the president for ensuring the provision of necessary financial and logistic support for the effective defence of this matter.

“We shall continue to provide sound legal advice and effective representation on behalf of the Federal Republic of Nigeria, ensuring that justice is served and the integrity of our nation upheld.”

Agreement tainted by bribery

PREMIUM TIMES has extensively reported on the arbitration verdict since its delivery.

Sunrise Power and Transmission Company Ltd (Sunrise), in justifying the alleged bribe payments funnelled to Nigerian government officials, attempted to frame the transactions as a reflection of “Nigerian culture”.

The company’s expert witness, Sope Williams, a professor and anti-corruption expert, whose testimony the verdict highlighted, told the tribunal that the facts underlying Nigeria’s corruption allegations should be considered against the background of the specific Nigerian cultural context.

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This newspaper also reported how the International Chamber of Commerce Tribunal revealed that former Attorney-General of the Federation, Abubakar Malami, attempted to deceive former President Muhammadu Buhari and engaged in corrupt deals with Mr Adesanya, the promoter of Sunrise in the controversial Mambilla Power project deal.

The tribunal noted that a corrupt deal was reached between the Sunrise founder and Mr Malami, concluding that the arrangement tainted a settlement agreement under which Nigeria was potentially liable for up to $400 million.

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 $200 million settlement sum and the $200 million default sum.

(NAN)