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The Court of Appeal in Abuja has stayed the execution of the September 23 judgment of a Federal High Court in Abuja ordering the Economic and Financial Crimes Commission (EFCC) to, among others, delete the name of the promoter of Sunrise Power and Transmission Company Ltd., Leno Adesanya, from its list of wanted persons in relation to any criminal allegations associated with the $6 billion Mambilla hydropower project contract.
In a unanimous ruling on Thursday, a three-member panel of the appellate court upheld the argument by the Attorney General of the Federation (AGF) that irreparable damage will occur if the judgment is executed before the determination of a pending appeal that queries the jurisdiction of the Federal High Court to hear the suit on which the judgment was given.
In the lead ruling, Justice Joseph Oyewole held that the motion for stay of execution, filed by the AGF was not an abuse of process as claimed by Adesanya and his firm.
Justice Oyewole further held that the balance of convenience was in favour of granting the relief sought in the motion on notice for a stay of execution filed by the AGF.
He proceeded to issue an order staying the execution of the September 23 judgment delivered by Justice Inyang Ekwo, and its accompanying orders, pending the determination of the pending appeal filed by the AGF against the judgment.
Justice Ekwo had delivered the September 23 judgment on a fundamental rights enforcement suit marked: FHC/ABJ/CS/267/2024 filed by Adesanya and his firm against the EFCC, the Federal Ministry of Power and Steel, the Federal Government of Nigeria and the Attorney General of the Federation (AGF).
Justice Ekwo agreed with Adesanya’s lawyer, M. S. Diri (SAN) that since the Ministry of Power has contested the claims of the plaintiffs and has counter-claimed against them (Sunrise’s claims) at the International Chamber of Commerce Court of Arbitration, the sanctity of the arbitral proceedings must be respected and protected.
The judge said the court was concerned with safeguarding the integrity of the arbitral proceedings currently ongoing between parties, based on the United Nations Conventions on International Dispute Resolutions, which Nigeria is a signatory to and has also domesticated.
He noted that the Ministry of Power must not be seen as a territory where international commercial transactions are unsafe and where municipal laws and agencies could be used against investors in case of disputes.
Justice Ekwo observed that Sunrise instituted fresh arbitral proceedings against the Federal Government of Nigeria, which are ongoing.
The judge, while noting that the fundamental rights guaranteed by the Constitution were not absolute, held that such assertion cannot serve as a defense against the violations such rights in manners that were at variant with constitutional provisions.
Justice Ekwo held that there was no valid defence from the EFCC to justify its publication of Adesanya’s name and photograph as a “wanted person” on its website.
He declared that the EFCC is not legally entitled to investigate, resolve or prosecute the contractual dispute between Sunrise and the Ministry of Power and the Federal Government, which is pending before the International Chamber of Commerce Court of Arbitration in Paris, under ICC Case Reference No. 26260/SPN/AB/CPB.
Justice Ekwo proceeded to issue an order “quashing, setting aside, and prohibiting the publication of the first plaintiff (Adesanya) as a wanted person or threatening to prosecute the plaintiffs by the EFCC over the Mambilla Hydroelectric Power Project, pending the determination of the contractual dispute between the second plaintiff and the second and third defendants, which is pending before the International Chamber of Commerce Court of Arbitration in Paris, under ICC Case Reference No. 26260/SPN/AB/CPB, where the second and third defendants have joined issues.”
He also issued an order “of mandatory injunction is hereby made directing and compelling the EFCC, whether by itself or through its officers, agents, servants, or any other means, to immediately take down, delete, and remove the name and photograph of the first plaintiff as a ‘wanted person’ from its website: https://www.efcc.gov.ng and all other social media platforms and notice boards; and to remove all other negative content concerning or relating to the first plaintiff in connection with any criminal allegations.”
Adesanya and his firm had claimed that they were being witch-hunted following the Federal Government’s failure to comply with the contractual agreement relating to the Mambilla project and their institution of an arbitral proceeding against the country.
They stated that despite the pendency of arbitral proceeding, the Fed Govt and its security agencies, including the EFCC, have sought to criminalize and scandalize the Mambilla Project in a bid to evade their legal contractual obligations.
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