By Oke Peter
The Federal Government has said it will demand damages from Process & Industrial Developments Limited, which lost its $11bn arbitration award against Nigeria on Monday in the United Kingdom.
The Attorney General of the Federation and Minister of Justice, Lateef Fagbemi, told Energy Worth Online that, “There will be further hearing by the United Kingdom court on the heels of this judgment to determine costs payable by P&ID and other others in the matter.’’
The Business and Property Court in London had on Monday halted the enforcement of the P&ID $11bn award against Nigeria in a case marked CL-2019-000752.
In the judgment delivered by Justice Robert Knowles, it was held that the process through which P&ID secured a 2010 contract to build a gas processing plant in Calabar, Cross River State, was fraudulent.
The arbitration court had awarded $6bn against Nigeria in January 2017 over the failed gas processing contract but the fine had accumulated to $11bn before the verdict was delivered on account of the seven per cent interest rate.
Delivering the long-awaited ruling in the case on Monday, Knowles stated, “In the circumstances and for the reasons I have sought to describe and explain, Nigeria succeeds on its challenge under Section 68. I have not accepted all of Nigeria’s allegations but the awards were obtained by fraud and the way in which they were procured was contrary to public policy.”
P&ID had claimed Nigeria violated the terms of its agreement by failing to provide gas for the power plant it wanted to build for the country.
According to the global firm, the alleged violation frustrated the construction of the gas project agreed to by the government of the late former President Umaru Yar’Adua and deprived P&ID of the potential benefits expected from 20 years’ worth of gas supplies with “anticipated profits of $5 to $6bn.”
The arbitral tribunal unanimously decided that the Nigerian government had repudiated the Gas Supply and Processing Agreement by its failure to perform its obligations under the agreement awarded to the P&ID in 2017.
An initial out-of-tribunal agreement for the payment of $850m was reached by a previous administration and the disbursement was passed on to the administration of former President Muhammadu Buhari.
Buhari, however, rejected the idea of paying the negotiated sum and challenged the enforcement of the award before the English Commercial Court.
The judge granted Nigeria’s request for a stay on any asset seizures while its legal challenge was pending, but ordered it to pay $200m to the court within 60 days to ensure the stay, including some court costs to P&ID within 14 days.
In the Monday ruling, Knowles observed that, “Notwithstanding Nigeria’s allegations, I have not found Nigeria’s lawyers in the arbitration to be corrupt. However, the case has shown examples where legal representatives did not do their work to the standard needed, where experts failed to do their work, and where politicians and civil servants failed to ensure that Nigeria as a state participated properly in the arbitration.
“The result was that the tribunal did not have the assistance that it was entitled to expect, which makes the arbitration process work. And Nigeria did not in the event properly consider, select and attempt admittedly difficult legal and factual arguments that the circumstances likely required. Even without the dishonest behaviour of P&ID, Nigeria was compromised.”
The AGF attributed Nigeria’s victory in the $11bn lawsuit to close a collaboration by agencies of the Federal Government.
Fagbemi said, “As you may all be aware by now, the Honorable Justice Robbin St. John Knowles of the United Kingdom commercial court today, handed down a historic judgment, in the suit, where the Federal Republic of Nigeria, otherwise known as FRN, moved to set aside the arbitral award of $9.6bn but which has now accrued interests now come to $11bn, made against Nigeria in 2017 in favour of P&ID for an alleged breach of a gas supply and processing agreement, purportedly entered into with the Ministry of Petroleum Resources to establish a gas processing plant in Calabar for which P&ID never secured any land sight.
“The arbitral award had over the years played the assets of the Federal Republic of Nigeria, and those of its agencies all over the world, at the risk of attachment, erosion of foreign reserves and distortion of monetary, fiscal and other policies of government with dire consequences for Nigeria and its people. These emphasised the need for the FRN to vigorously challenge and resist the enforcement of the award by P&ID.
“The judgment handed down today found that the award had been obtained by fraud and in a way which goes contrary to public policy. In particular, the judge concluded that P&ID obtained the award only by practising the most severe abuses of the arbitral process. It has been a night of long nights indeed.
“The success marks the culmination of a decade of legal action and is not just a victory for the poor of Nigeria but any similar target of corruption and fraud.”
President Bola Tinubu also expressed excitement over the verdict, saying it liberated the country from unjust economic malpractice.
A statement by the President’s Special Adviser on Media and Publicity, Ajuri Ngelale, quoted Tinubu as saying, “This landmark judgment proves that nation-states will no longer be held hostage by economic conspiracies between private firms and solitarily corrupt officials who conspire to extort and indebt the very nations they swear to defend and protect.
“Today’s victory is not for Nigeria alone; it is a victory for our long-exploited continent and for the developing world at large, which has for too long been on the receiving end of unjust economic malpractice and overt exploitation.”
Tinubu commended the Nigerian legal team and acknowledged the roles of the Federal Ministry of Justice and the office of the AGF in defending the country’s interest in the case.