Is Nigeria In A Cul-De-Sac? (Part 2) By Mike Ozekhome SAN – TheNigerialawyer

INTRODUCTION

Last week, we delved into this recent thought provoking issue,
wherein, we dealt extensively on the facts of the case and the
former Attorney-General of the Federation (AGF), Michael Aondoakaa,
SAN’s reaction to the issue. Today, we shall continue with our
discourse, starting with Malami’s response to Aondoakaa’s
statement.

MALAMI, SAN’S RESPONSE

Abubakar Malami, SAN, the Attorney General of Nigeria agrees in
his reaction that:

“The Arbitral Tribunal on 31st January 2017 rendered its
Final Award against the Ministry of Petroleum Resources in the sum
of US$6.597 Billion together with pre-award interest at the rate of
7% per annum effective from 20th March 2013 and post award interest
at the same rate till date of payment.” He further agrees
that:

“Upon the Award, P&ID commenced recognition and
enforcement proceedings of the arbitration award against FGN in
March 2018 in both the United Kingdom (“UK”) and the United States
of America (the “United States”). In view of the huge arbitration
award, the current administration took positive steps in
challenging the award, thus, the FGN is duly represented in the
proceedings in the United States and the UK by the foreign Law Firm
of Curtis, Mallet-Prevost, Colt & Mosle LLP.”

He however added that:

“Consequently, FGN is vigorously defending its interests
in the United Kingdom. It is entirely proper for Nigeria to raise
and to strongly assert all available and proper defences to the
claims brought by P&ID.”

CENTRAL BANK OF NIGERIA (CBN)’S RESPONSE

The CBN Governor, Godwin Emefiele, described the contract
leading to the judgment as a “fraudulent contract”
between the Ministry of Petroleum Resources and P&ID.

Emefiele noted that, contrary to its claims in the media, the
foreign firm did not invest any money on the contract in
Nigeria.

 “As a foreign company, if you are investing either
in a contract or a project in Nigeria, there are various options
you will adopt in bringing in your investment.

“If you are bringing in capital, in which case you are
bringing in the money, you will fill Form A and you will also
collect a certificate of capital importation.

“If you are bringing in machine or assets to execute
your contract, then in this case you will fill Form M and also
collect a certificate of capital importation to prove that you
actually brought in money.

“We have gone through our records, we do not have any
information in our records to show that this company brought in one
cent into this country and we have accordingly written to the
Economic and Financial Crime Commission and the Intelligence
Department of the Nigeria Police that are currently investigating
this matter.”

Okay, we have heard the Nigerian government’s side of the story.
But, is that what the law says?

NOW THIS LEGAL ISSUES
ARISING

DISCOVERY OF “SILVER BULLET” TO SHOOT DOWN $9.6BN
P&ID CLAIM AND PRIVATE INTERNATIONAL LAW

Suddenly, some Nigerians, especially of this government, laden
with sentiments, have now said they have found a “silver
bullet” to shoot down the $9.6billion world record claim
against Nigeria’s assets by Irish company Process and Industrial
Development (P&ID). The rock-solid defence, they claim, is
contained in a UK law that gives immunity to Sovereign states.

UK’s State Immunity Act 1978 (the Act) bars UK
courts from confiscating assets of a foreign state without the
consent of that state, gives it a leeway in the matter.
The Act allows a written consent of a foreign state before the
enforcement of a judgment which could lead to seizure of assets or
freezing of accounts.

AND THIS

Proponents and supporters of this government claimed to have
discovered a “silver bullet” to shut down the $9
billion debt. They rely on “Section 13(2) of the Act which provides
that:(a) relief shall not be given against a State by way
of injunction or order for specific performance or for the recovery
of land or other property; and (b) the property of a State shall
not be subject to any process for the enforcement of a judgment or
arbitration award or, in an action in rem, for its arrest,
detention or sale”.

They argue: “Pursuant to section 13 of the Act, state assets
‘shall not be subject to any process for the enforcement of a
judgment or arbitration award or, in an action in rem, for [their]
arrest, detention or sale’ unless the state has provided its
written consent. For example, Gold Reserve Inc v. Venezuela
[2016] EWHC 153 (Comm), finding that Venezuela had
submitted to arbitration in writing by entering into a bilateral
investment treaty (BIT) with Canada) or the assets in question are
‘in use or intended for use for commercial purposes’ (section
13(2)-(4)). These provisions apply in respect to states alone as
defined in section 14 of the Act, and do not therefore extend to
separate entities (see question 8).

“This provision is subject to sections 13(3) and 13(4) of the
Act. Pursuant to section 13(3), a state may provide written consent
to the grant of any relief against it. It follows that a state may
consent to the grant of interim or injunctive relief against it;
however, the mere submission to the jurisdiction of the UK courts
does not constitute such consent.” (To be continued).

THOUGHT FOR THE WEEK

“I think whether you’re having setbacks or not, the role of a
leader is to always display a winning attitude.” (Colin
Powell).

 LAST LINE

I thank Nigerians for always keeping faith with the Sunday
Sermon on the Mount of the Nigerian Project, by Chief Mike
Ozekhome, SAN, OFR, FCIArb., Ph.D, LL.D. I enjoin you to look
forward to next week’s treatise.

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