Nigeria No Longer Soft Target for Predatory Arbitration, Fagbemi Warns
• Malami denies bribery claim, says ICC award not criminal conviction
Alex Enumah in Abuja and Onuminya Innocent in Sokoto
The Attorney General of the Federation (AGF) and Minister of Justice, Prince Lateef Fagbemi (SAN) has warned that Nigeria will no longer be a soft target for predatory litigation and arbitration.
Fagbemi sounded the warning while reacting to a recent judgment of an international tribunal in Paris, France which ruled in favour of Nigeria in a $400 million arbitration.
In a statement released to newsmen in Abuja, the AGF recalled how the International Chamber of Commerce (ICC), in Paris, France had on September 17, announced what he described as a “landmark and decisive victory” for the Federal Republic of Nigeria in the international arbitration instituted by Sunrise Power and Transmission Company Limited (Sunrise) and its principal, Mr. Leno Adesanya.
“For over two decades, the progress of this vital project has been held hostage by Sunrise’s relentless litigation and arbitration against the Federal Republic of Nigeria – beginning 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 closure, 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”, the statement read.
Speaking further, the minister disclosed that the tribunal in its verdict rejected the entire claim of Sunrise, after it found that the Settlement Agreement and the Addendum thereto, are not binding on Nigeria, because the former Nigerian ministers who signed them lacked the requisite authority to commit and bind the Federal Government of Nigeria without presidential approval.
Fagbemi also disclosed that the tribunal had in addition, held that the Settlement Agreement was a product of corruption and a violation of Nigerian public policy thereby making it unenforceable.
“This award serves as a clear and unequivocal message: the Federal Republic of Nigeria will not be a soft target for predatory litigation and arbitration”, the statement added.
Also, the AGF acknowledged the leadership efforts of President Bola Tinubu, who he disclosed consistently maintained the position that under no guise should Nigeria succumb to fraudulently contrived contractual agreements and any adverse claims arising therefrom.
Fagbemi assured that under his leadership, the Federal Ministry of Justice will remain unwavering in its duty to safeguard the rule of law and defend Nigeria’s legal interest at all times.
“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”, he said.
Meanwhile, former Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN) has welcomed Nigeria’s victory in the long-running Mambilla Hydroelectric Power Project arbitration while rejecting reports that the tribunal found him complicit in a corrupt arrangement with Sunrise Power promoter, Leno Adesanya.
In a press statement issued by his Special Assistant on Media, Mohammed Doka, Malami said the protection of Nigeria from substantial financial exposure is an outcome every patriotic Nigerian should welcome, irrespective of political affiliation.
Malami nevertheless urged caution and fidelity to the complete record, stressing that the proceedings were commercial arbitration between disputing parties and not a criminal prosecution against him.
“The proceedings were commercial arbitration proceedings between parties to a dispute. They were not a criminal prosecution of Abubakar Malami, SAN, and the award does not constitute a criminal conviction of him,” the statement said.
He noted that while serious findings have been reported, including concerning the settlement and Addendum, presidential approval and communications with Adesanya, such matters should not be ignored, trivialised or answered by speculation but considered against the complete evidentiary and documentary record.
According to the statement, the Mambilla contractual controversy did not originate during Malami’s tenure because its history stretches back to 2003 when Sunrise became involved in the project, and that years before he assumed office, former AGF Michael Aondoakaa had reviewed the dispute and recommended amicable resolution.
He said that the federal government in November 2012 entered into a General Project Execution Agreement involving Sunrise and Sinohydro.
Malami said his involvement followed governmental and presidential processes, citing an April 2016 directive from the Chief of Staff to then President Muhammadu Buhari concerning resolution of outstanding disputes, and records indicating that the unresolved arbitration was regarded as an impediment to financing discussions involving China Exim Bank, including discussions on September 5, 2019 involving Buhari and Yang Jiechi, Special Representative of President Xi Jinping.
On why a $200 million settlement was considered, the former AGF explained that Sunrise was asserting claims running into billions of dollars, initially proposing $500 million as full and final settlement during London negotiations in November 2019 while federal government representatives countered with $100 million before a figure of $200 million emerged.
He stated that Buhari ultimately did not approve payment, indicating on April 20, 2020 that the federal government did not have $200 million to pay Sunrise, a position communicated to Sunrise on April 22, 2020, and that a January 2021 request for approval was marked “Not approved” by the President.
On the allegation of a corrupt arrangement, Malami described it as exceptionally serious and deserving a direct response, rejecting any suggestion that his official actions were undertaken pursuant to a corrupt agreement or in exchange for personal financial benefit, and noting that the settlement money itself was never paid and that Adesanya’s claimed audio or video recordings were not produced before the tribunal.
The statement emphasised that following Buhari’s refusal, Malami did not direct payment regardless, but instructed counsel representing the federal government to resist Sunrise’s attempt to rely on the enhanced $400 million liability and to preserve Nigeria’s legal position.
