A Human and socio-economic rights activist, Hameed Ajibola
Jimoh, Esq has written to the Minister of Justice and
Attorney-General of the Federation over the Arbitral Award of the
sum of $9.6 billion (equivalent to about N3.2 trillion) by the
English Court situate in England against Nigeria and in favour of
Process and Industrial Developments Limited on the 16th day of
August, 2019.
In a letter dated 30th of August, 2019 signed by the activist
and made available to TheNigeraLawyer (TNL), he expressed
displeasure over the manner through which the concerned Ministries
and public officials who participated in the pre-contract, contract
and post-contract of the said Gas Supply and Processing Agreement
handled the transactions and the litigation emanating from the said
award also the reckless and careless draft of some of the terms of
the said contract.
Jimoh laments that the award, which he describes as punitive to
the Nigerian generations of present and those to come, was a
self-inflicted harm coupled with avoidable gross negligence on the
part of the Ministry of government and officials who were in charge
as at the contracting stages, especially the Federal Ministry of
Petroleum Resources and those legal counsel engaged to defend the
suit at both the arbitration tribunal and the various courts-both
Nigerian and English Courts.
He lamented further that FGN’s objections in the whole
Arbitration and the suit where based on technicalities and not on
the substance of the claims. He also alleged want of diligent
prosecution on the part of FGN.
The activist recommends a thorough investigation of all Federal
Agencies and public officials involved in the pre-contract,
contract and post-contract affairs leading to the said arbitral
award and to bring anyone found culpable to book in the interest of
this nation and to deter such further act in the nearest
future!
Read the letter below:
30th August, 2019.
The Honourable, the Attorney-General of the Federation
And the Honourable, the Minister for Justice of the Federation,
Office of the Honourable, the Attorney-General of the
Federation,
Federal Republic of Nigeria,
Federal Ministry of Justice,
Federal Capital Territory- Abuja.
Your Excellency,
RE: CASE NO: CL-2018-000182, BETWEEN: PROCESS &
INDUSTRIAL DEVELOPMENTS LIMITED V THE FEDERAL REPUBLIC OF
NIGERIA
LETTER OF DISPLEASURE AT THE CIRCUMSTANCES SURROUNDING
THE ARBITRAL AWARD OF $9.6 BILLION (EQUIVALENT TO ABOUT N3.2.
TRILLION) BY THE ENGLISH COURT AGAINST THE FEDERAL REPUBLIC OF
NIGERIA IN FAVOUR OF PROCESS AND INDUSTRIAL DEVELOPMENTS LIMITED ON
THE 16TH DAY OF AUGUST, 2019 AND A RECOMMENDATION FOR A THOROUGH
INVESTIGATION OF ALL FEDERAL AGENCIES AND PUBLIC OFFICIALS INVOLVED
IN THE PRE-CONTRACT, CONTRACT AND POST-CONTRACT AFFAIRS LEADING TO
THE SAID ARBITRAL AWARD AND LITIGATION AND A HUMBLE REQUEST FOR
FEED BACK ON THE PROGRESS OF THE INVESTIGATION AND NECESSARY
ACTIONS TAKEN BY THE FEDERAL GOVERNMENT OR YOUR EXCELLENCY ON THE
OUTCOME OF THE INVESTIGATION
1. I am a legal practitioner, a human and socio-economic rights
activist and a patriotic Nigerian citizen. The media has been
recently awash by the Arbitral Award of the sum of $9.6 billion
(equivalent to about N3.2 trillion) by the English Court situate in
England in the above referenced suit against the Federal Republic
of Nigeria but in favour of Process and Industrial Developments
Limited-herein after referred to as the P&ID Limited- on the
16th day of August, 2019. Much more so that the accruing interest
daily is 7% of the arbitral award earlier awarded by the Arbitral
Tribunal which is about $1.2 million daily. I was able to read
through the said Judgment available in social media’s circulation
and after proof-reading the said Judgment as a legal practitioner
and a human and socio-economic rights activist, nevertheless the
purported steps of application for a stay of the execution of the
judgment and an appeal of the said judgment by the Federal
Government, I felt so displeased at the manner through which the
concerned Ministries and public officials who participated in the
pre-contract, contract and post-contract of the said Gas Supply and
Processing Agreement-herein after referred to as the GSPA- handled
the transactions and the litigation emanating from the said award
until the said Arbitral award awarded by the Arbitration Tribunal
was confirmed by the English Court on the 16th day of August, 2019
in favour of the P&ID. I was also displeased at the reckless
and careless draft of some of the terms of the said contract to
such extent that I queried whether the Office of the Honourable,
the Attorney-General of the Federation was actually consulted and
or involved in the entire transactions as the Chief Law Officer of
the Federation and the Honourable, the Minister for Justice of the
Federation?! I observed some gross negligence in the manner of the
contract and the litigation emanating from the said arbitral award,
considering the facts and reasoning of the Presiding Justice of the
English Court (though, I was not afforded the opportunity of
reading the said agreement). Having read through the accounts
expressed by the Honourable, the Presiding Justice of the English
Court, Mr Justice Butcher, I suspected that something must
definitely or is likely to be wrong somewhere, hence this my letter
of displeasure.
2. Your Excellency, First and foremost, with due respect, it
must be pointed out that contracts and or agreements of this nature
are of three stages vis-à-vis: the pre-contract; the contract and
the post contract stages respectively. In my humble view, it is
expected that necessary synergy and steps would be taken by the
Federal Government of Nigeria-herein after referred to as the FGN-
to ensure that various necessary government’s agencies participated
in the draft of the agreement most importantly because of its
likely consequences on the nation and its economy. I would have
expected, with due respect to the FGN, that the Federal Ministry of
Justice or the Office of the Attorney-General of the Federation
(who is the Chief Law/Legal Officer of the Federation with pools of
trained and experienced lawyers) would have been involved in the
drafting, proof reading, study, analyses, etc. of the draft
agreement before its execution to avoid the situation such as the
one that we have found ourselves in as a country, because, I found
it very unbelievable that any lawyer or the Office of the
Attorney-General of the Federation actually participated or carried
out these suggested recommendations before the agreement was
finally executed by the parties to the agreement! Then, at the
contract stage, I would have expected that feasibility test as done
at the pre-contract stage would also be put in place at this stage
wherein the contract was finally agreed to by the parties to the
agreement. Then, at the post-contract agreement, it was for the FGN
to carry out its voluntarily agreed obligations to the contracting
foreign company. Also, I would have expected that a copy of such
agreement is also handled by the Office of the Attorney-General of
the Federation-herein after referred to as the AGF! Whether these
tests were carried out became another issue!
3. Now, from the Judgment which I read and analysed, there was
nothing which indicated that the FGN actually has any term in the
agreement that it could withdraw from the said agreement after its
execution (like I said, I have not been able to lay my hands on the
said agreement but I am relying on the analysis made the Presiding
Judge of the English Court in the Judgment), yet, the FGN withdrew!
Why?!. The question also is: ‘why did the FGN fail to include this
important term in the agreement?!’ In drafting an agreement, it is
usual for parties to include that either of the parties can
withdraw from the agreement since more so that ‘consideration’
(i.e. money or material) has not been transferred from one party to
the other at that stage. Even in a tenancy agreement, it is typical
and usual to have such a term. Why then did the representing
officials fail to consider this clause of right to withdraw or
repudiate?! This raises a suspicion in my mind (with due respect)
that something must be wrong somewhere! What was the qualification,
trainings, expertise and experiences of those who drafted or
prepared the agreement?! Was the AGF too given the opportunity to
make his contributions into the agreement as the Chief Law/Legal
Officer of the Federation?! These were some questions that crossed
my mind!
4. Furthermore, in my humble view, with due respect to the FGN,
I view that the award (which is somehow punitive to the Nigerian
generations of present and those to come) was a self-inflicted harm
coupled with avoidable gross negligence on the part of the Ministry
of government and officials who were in charge as at the
contracting stages, especially the Federal Ministry of Petroleum
Resources and those legal counsel engaged to defend the suit at
both the arbitration tribunal and the various courts-both Nigerian
and English Courts. This is because, the agreement in my humble
view, was a careless and reckless one which is likely to collapse
the nation. I must also point out here that Clause 20 of the said
agreement provides that ‘The Arbitration award shall be final and
binding upon the parties’. Can one imagine?! So, if the Arbitration
award (such as it is in this case) is final and binding, then, why
is the FGN complaining about the award?! Also, the case in the
English Court could not have been able to succeed if the FGN were
to challenge the Arbitral award but the FGN failed, with due
respect, to also consider thoughtfully that the award is not only
the money rather the entire decision of the Arbitration Tribunal.
So, why did the FGN carelessly agree to such final and binding
decision in its agreement initially without a condition or a saving
clause?!
5. Furthermore, I observed that FGN’s objections in the whole
Arbitration and the suit where based on technicalities and not on
the substance of the claims, much more so that it was
self-inflicted by the FGN, with due respect. The first of it was
that the initial contract was repudiated by the FGN as alleged by
the foreign company/claimant. Also, I beg to disagree with those
who hold the view that the award was as a result of a ‘lacuna’
which is contained in the agreement! The reason for my disagreement
was because the FGN through its representatives, with due respect,
was grossly negligent in the whole transactions. Some of these
gross negligent conducts are:
i. The lack of diligently prosecuting the suit that it instituted
in Nigerian Court in Lagos, on the 9th day of May, 2016,
challenging misconduct on the part of the Arbitration Tribunal,
which was later struck out by the Nigerian Court for lack of
diligent prosecution;
ii. The FGN never applied to set aside the Final Award of the
Arbitration Tribunal decided on the 31st day of January, 2017,
which in law, will mean that the FGN was or is not objecting to the
Final Award. And the FGN never took such step or file any process
to challenge and or set aside the said Arbitration Award in any
court even since the said 31st day of January, 2017 till the 16th
day of August, 2019, when the English Court delivered its Judgment
confirming the Award with accruing interests (which was about two
(2) years since the Arbitral award was made).
iii. Apart from the agreed terms in the agreement, Clause 20 of the
GSPA, provides that ‘The Arbitration award shall be final and
binding on all the parties…’.
6. Therefore, I humbly disagree and submit, with due respect,
that the Judgment of the English Court’s Judgment was not as a
result of any legal lacuna whatsoever rather, it was much more
strengthened by the gross negligence of the FGN and its
representing officials. More so, the Arbitral Award issue was
resolved before the Arbitration Tribunal and not the English Court.
The said award was not challenged for good two (2) years by the FGN
and the issue before the English Court was for leave to enforce the
said Arbitral Award. It is only unfortunate that there are several
monetary judgments by the Nigerian courts against the FGN or its
Ministries, Departments and Agencies which the government has made
very difficult to enforce but just a foreigner will be able to
enforce more than 3 trillion naira of the Nigerian money!
7. I have also considered the reasoning of the English Court at
page: 18, paragraphs: 65 and 67 and page: 18, paragraph 87 of the
soft copy of the Judgment which I was able to lay my hands on and
perused, which was about 28 pages in all.
8. Finally, I therefore in all, suspect that something must
definitely be wrong somewhere and I therefore recommend as
follows:
i. a thorough investigation of all Federal Agencies and public
officials involved in the pre-contract, contract and post-contract
affairs leading to the said arbitral award and to bring anyone
found culpable to book in the interest of this nation and to deter
such further act in the nearest future!
ii. Effective Coordination and supervision of all the Federal
Government’s Ministries’, Departments’ and Agencies’ activities by
the Honourable, Attorney-General of the Federation.
iii. Passing of circular(s)/directive for submission of all
contracts embarked upon or pending before the Ministries,
Departments and Agencies of the Federal Government henceforth to
Your Excellency, for a thorough legal scrutiny and advisory by the
Honourable, the Attorney-General of the Federation, in order to
forestall any of such unfortunate circumstance in the nearest
future;
iv. Negotiation (if possible) with the P&ID Limited on the
Arbitral Award’s payment and or likely consideration for reduction
in the award;
v. I also humbly request for feedback on the progress of the
investigation and necessary actions taken by the Federal Government
or Your Excellency on the outcome of the investigation by virtue of
Your Excellency’s Office as the Chief Law Officer and the Minister
for Justice of the Federation having the coordination and
supervisory functions over all activities of the Federal
Government’s Ministries, Departments and Agencies and all public
servants in the service of the Federation.
9. While I anticipate that this petition would be given due but
favourable consideration, please accept the assurances of my warm
professional regards!
10. Yours faithfully,
Hameed Ajibola Jimoh Esq.
Sole Practitioner/Principal Counsel/ Human and Socio-economic
Rights Activist.