An Irish firm, which won a world record $9.6bn arbitration fine against the Federal Government, has instructed its lawyers to identify Nigeria’s assets that can be targeted to recover the money.
The company confirmed in an electronic mail to our correspondent that it was focussed on identifying Nigeria’s assets that could be seized in the process of enforcing the decision of an arbitration tribunal which was recently converted to a court judgment.
In the email response to The PUNCH on Sunday, the company hinted at the possibility of seizing Nigerian naval vessels or oil cargoes, citing the Argentinean and Venezuelan experiences as precedents.
In the email sent by the P&ID’s representative, Mr John Ehiguese, the company said, “We cannot confirm specifics. However, the P&ID’s legal team is working diligently to identify and target assets that may be used for enforcement of the tribunal award.
“There have been many successful enforcement cases against sovereign states in the past.
“In the case against Argentina, creditors detained an Argentine naval vessel; in the case against Venezuela there was the seizure of state-owned oil cargo. There is a wide range of potential assets.”
However, the company did not rule out the possibility of alternative resolution of the fine, which has the potential of wiping out 20 per cent of the country’s foreign reserves.
The company in an email response to one of our correspondent’s questions said the onus was upon the government of President Muhammadu Buhari to show good faith and enter into reasonable negotiations.
It stated, “The real question is: is the Nigerian Government willing to enter good-faith negotiations? The ball is now in the court of the Buhari Administration to demonstrate a mature, good-faith approach to a resolution; their legal arguments have been completely rejected.
“In the meantime, the P&ID will look to seize Nigeria’s assets in the UK to enforce the award as soon as possible. The company’s current focus is vigorously enforcing the award.
“The onus is on the Nigerian government and the Buhari Administration to demonstrate a mature, good-faith approach to a resolution.”
The Irish firm accused the administration of engaging in a smear campaign instead of addressing the issues.
It said, “Instead of accepting responsibility or pursuing a negotiated settlement, the Buhari administration has regrettably chosen to continue its campaign of misinformation and misdirection, including wild allegations against the English judge and commencing a sham investigation.
“This approach is not constructive, and will not help to resolve the situation. The P&ID will begin enforcing its legal rights, including the seizure of Nigerian assets in the UK.”
Nigerian government officials, including the Attorney General of the Federation, and Minister of Justice, Abubakar Malami (SAN), and the Governor of Central Bank of Nigeria, Godwin Emefiele, had consistently said the judgment would be challenged.
Attempts to confirm whether an appeal had been filed or that the Federal Government had instructed its lawyer to file the appeal proved abortive.
The Federal Government’s lawyer, Harry Matovu, (Queens Counsel), said he would not be able to speak on the matter.
He said, “I am unable to comment on this matter, and I would respectfully suggest that you refer any queries to the Federal Government.”
When our correspondent contacted an aide to the Minister of Information and Culture, Mr Lai Mohammed, he declined the request on the grounds that the minister would address the issues on Monday (today).
The contract and the judgment
The contract that has simply become known as the GSPA is the Gas Supply Processing Agreement, which was entered into on behalf of the Federal Government by the Ministry of Petroleum Resources.
The contract was signed on January 11, 2010 between the two parties.
By the contract, the Federal Government entered into an agreement to supply a firm registered in the United Kingdom, Process and Industrial Development Limited 400 MMScuFD of wet gas for a period of 20 years.
The company was to process the wet gas into lean gas suitable for firing gas-powered electricity generation plants.
While the company would make available 85 per cent of the lean gas proceeds from the process, it was to be compensated through the by-products such as butane and sell in the international market.
Nigeria was to benefit from the sale of the by-products through 10 per cent share in the British firm.
Information available to our correspondent showed that the supply of wet gas was to take place in two phases.
In phase one, the government was to make available 150MMScuFD during or before the last quarter of 2011. In phase two, the remaining 250MMScuFD must be supplied on or before the third quarter of 2012.
The Process and Industrial Development Limited was to build two or more plants for the processing of the wet gas into lean gas at no cost to the government since it would be compensated from the proceeds.
However, the government failed to build the pipeline to supply gas to the company. The company also failed to construct the plant for processing the plant.
On August 22, 2012, the British firm filed for arbitration. It wrote the Federal Government on March 20, 2013, accusing it of repudiating the contract it entered with the company.
The government alleged that the agreement was on various grounds invalid or subsequently frustrated, varied or discharged by force majeure.
A panel of arbitration ruled that Nigeria was liable for the failure of the contract and should pay the British firm a sum of $6.597bn as the profit that the company would have made in the 20 years tenure of the contract.
It also ruled that the company should be paid seven per cent interest until the award was settled.
This is what has snowballed into $9.6bn judgment debt as the firm had recently sought and secured from a British High Court the conversion of the arbitration decision into a court judgment.
The company, Process and Industrial Development Limited
If the name of the company that had secured a $9.6bn judgement against Nigeria conjures an image of a global industrial giant, you will not be mistaken.
However, not much can be gleaned on the Internet about this company except its case against Nigeria. It appears, therefore, that the company is a portfolio firm incorporated in 2006 to secure the contract with Nigeria.
However, its founders, Brendan Cahill and Michael Quinn — had a 30-year track record of planning and delivering projects in Nigeria, the company claimed.
“These include projects that had real and measurably positive impacts on the Nigerian economy and people,” the company added.
It listed the projects to include ‘upgrading the port infrastructure at the Nigerian ports in Lagos and Calabar and establishing Africa’s first-ever gas pressure vessel manufacturing facility – including installation at nine sites across Nigeria (known as the “Butanisation Project”).’
The company claimed that there were also other projects that ‘delivered billions of dollars of value for the Nigerian economy, and created thousands of jobs for Nigerians.’
“The gas pressure vessel manufacturing is now a significant industry in Nigeria, helping to train skilled local workers, and benefitting families and communities,” it added.
Our correspondent reports that the lacuna in the leadership of Nigeria played a critical role in the $9.6bn arbitration award quagmire that Nigeria is now fighting hard to wriggle out from.
Administrative and leadership tardiness also played a significant role in escalating the smouldering fire that could have been quenched, findings have shown.
Available information showed that the controversial gas contract was signed between the Federal Government of Nigeria and the Process and Industrial Development Limited on January 10, 2010.
This was the rudderless period in the history of Nigeria occasioned by the medical trip undertaken by the late President Umar Yar’Adua without transmitting power to Vice-President Goodluck Jonathan.
Yar’Adua had gone to Saudi Arabia in November 2009. He did not return from that trip alive. In fact, his corpse only returned to Nigeria on May 16, 2010.
While he was away, a cabal reportedly headed by the then Attorney General of the Federation, Mr Michael Aondoakaa, ensured that Jonathan was kept outside the mainstream of government business.
The three-man arbitration panel
The panel that delivered a judgment was made up of three lawyers – Bayo Ojo (SAN), Lord Hoffmann and Anthony Evans.
Bayo Ojo, SAN was appointed by the Federal Government to represent it on the arbitration panel. The P&ID appointed Evans Anthony and the two of them in turn appointed Lord Hoffman to chair the panel.
Lord Hoffman and Anthony Evans held that Nigeria was liable to $6.6bn and that became the majority decision. Ojo, a former Minister of Justice and Attorney General of the Federation, in a minority judgement, held that the P&ID was entitled to some compensation but should not be more than $250m.