British firm listing Nigeria assets for seizure – TheNigerialawyer

…may impound naval vessels, oil cargoes

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 not TheNigerialawyer 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.

Historical perspective

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.

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