Connect with us

Featured

Alleged Breach of Contract: U.S. Court Rejects Nigeria’s Request to Cancel N2.7 Trillion Fine

Published

on

The District Circuit Court in Washington DC has dismissed Nigeria’s request for it to set aside its $8.9 billion arbitration award against her over alleged breach of contract.

The court presided over by Justice Christopher Cooper said the request was denied not only on ground that it was belated, but also that it sought the dismissal of the petition for the enforcement of the award.

A government legal team led by the Attorney General and Minister of Justice, Abubakar Malami, left Nigeria on Wednesday morning to Washington DC to attempt to get the court to set aside the award against Nigeria.

The team, which jetted out of the country aboard a British Airways flight, also included the Solicitor-General of the Federation, Dayo Apata, and the Minister of State for Petroleum Resources, Ibe Kachikwu.

The team was joined by a team of foreign solicitors, Messrs Curtis, Mallet-Prevost, Colt & Mosle LLP, hired by the federal government to initiate the legal process to challenge the enforcement of the $8.9 billion award against the country.

But, the outcome of the court’s proceedings monitored by PREMIUM TIMES showed that Nigeria’s motion requesting the court to set aside the clerk’s entry of default award was dismissed.

The court however granted a part of the country’s motion that Nigeria was not properly served the process documents by addressing them to the “head of the ministry of foreign affairs” as is the practice under 28 U.S. Code section 1608(a)(3).

The code stipulates the order of service or delivery of a copy of the summons and complaint in U.S. courts to a foreign state or political subdivision of a foreign state.

In his ruling on Friday, Judge Christopher Cooper said the court would have granted Nigeria’s request to set aside entry of default in view of the country’s recent interest to appeal, but described the request as belated.

The law stipulates a period of 30 days within which copies of the summons and complaint and a notice of suit should be sent to a foreign state.

“The motion is DENIED to the extent it seeks dismissal of the petition,” the judge said.

The arbitration award was issued on March 20, 2013 in favour of a British engineering firm, Process & Industrial Development Limited (P&ID), over alleged breach of contract by the Nigerian government.

The original award against Nigeria was about $6.59 billion. But, following the country’s refusal to enter an appeal for over five years, the award attracted additional $2.3billion in accumulated interest at 7 per cent rate per annum.

On January 31, 2017, the three-man tribunal constituted under the rules of the Arbitration Act 1996 (England and Wales) and the Nigerian Arbitration and Conciliation Act (CAP A18 LFN 2004), gave the final award of $8.9 billion for enforcement.

PREMIUM TIMES learnt that the Malami team had received a directive from President Muhammadu Buhari to ensure they did all that is legally possible to get the U.S. Court to review its affirmation of the award and drastically reduce its value against Nigeria.

However, a senior Justice Ministry official who spoke with PREMIUM TIMES on condition of anonymity on Thursday said the main plank of the team’s argument, which they sold to the president, was that the court lacked the legal authority to give such a ruling against a sovereign nation like Nigeria.

Early this month, the Solicitor-General, Mr Apata, canvassed that line of argument in his reaction to PREMIUM TIMES’ earlier report on the final ruling by the tribunal against Nigeria.

On May 24 this year, this newspaper reported exclusively how the Nigerian government fell into big trouble capable of grounding her fragile economy following a request by P&ID for enforcement of the award.

The report detailed how a $6.59 billion arbitration award since 2013 over alleged breach of contract was allowed to build up to about $8.9billion (about N2.7 trillion at CBN’s N305.4 as of May 22) following accumulated $2.3 billion uncollected interest as of March 2018.

Official documents reviewed by this newspaper showed that a government negotiation team constituted in 2015 by the Goodluck Jonathan successfully negotiated an out-of-tribunal settlement with P&ID and got the company to accept an $850 million payment, about 9.6 per cent of the $8.9billion award.

However, rather than take the recommended action, the present administration opted to set aside the settlement agreement, directing its lawyers to return to the tribunal to renegotiate with the engineering firm.

The decision gave the tribunal the opportunity to enter its final ruling, after the first and second partial final awards on July 3, 2014 and July 17, 2015 respectively, effectively awarding $6.59 billion fine against Nigeria.

The refusal to settle the matter for over five years attracted additional $2.3billion in accumulated interest at seven per cent per annum.

But, Mr Apata in his reaction described the reports as “false”, claiming that the affirmation given by the tribunal on March 2018 to its January 2017 ruling was a “default entry by the clerk” rather than a “default judgement.”

The final ruling was handed down by the court following an application by P&ID seeking enforcement of the award after the Nigerian government failed to defend itself against allegations by the company.

Mr Apata told reporters the Arbitration court lacked the constitutional powers to issue such an order or award against a sovereign state like Nigeria.

“It needs to be stated that what is being touted as a default judgement was actually a default entry made by the court clerk. Under the Foreign Sovereign Immunities Act (FSIA), a defendant has up to 60 days period to answer to a petition filed against it.

“Where no response is entered for the defendant, the court clerk upon application by the petitioner, makes a default entry, which in this case was made on June 5,” he said.

Besides, he said there were certain conditions that must be attained before the U.S. court could deliver such a judgement.

According to Mr Apata, under the FSIA, a default judgement cannot be entered against a foreign state like Nigeria, unless the presiding judge determines so after the petitioner/claimant must have established its entitlement to a default judgment.

He said based on the presumption of sovereign immunity, the US District Court was still under obligation, despite default by a Foreign State, to determine whether the Foreign State was immune from the jurisdiction of the US Court under FSIA, or whether the case before it fell within one of the recognized exceptions.

Besides, he argued that even where the court had determined that it has jurisdiction, a default judgment would not be granted automatically, or as a routine matter to be handled by a court clerk, as this could only be done after a formal trial.

He cited the provision of Section 1608(e) of the FSIA, which states: “No judgment by default shall be entered by a court of the United States or of a State against a foreign state, a political subdivision thereof, or an agency or instrumentality of a foreign state, unless the claimant establishes his claim or right to relief by evidence satisfactory to the court… “

NIGERIA WAIVED HER SOVEREIGNTY UNDER AGREEMENT

Regardless, the three-member tribunal led by the presiding Arbitrator, Lord Hoffman, had noted in its final award that the agreement between P&ID and Nigeria was governed by the laws of the Federal Republic of Nigeria.

The tribunal said both parties had agreed that in the event of any dispute, each may issue a notice of arbitration under the rules of the Arbitration Act 1996 (England and Wales) and the Nigerian Arbitration and Conciliation Act (Cap A18 LFN 2004.

Under the Act, the parties agreed that any “arbitration award shall be final and binding upon the parties.”

Besides, following challenges to the tribunal’s jurisdiction in the United Kingdom and Nigeria, court documents seen by PREMIUM TIMES showed that P&ID told the court Nigeria was treaty-bound to pay the award.

The plank of the company’s argument was that by virtue of the terms of agreement they signed, agreeing to be bound by the outcome of any arbitration, Nigeria waived its right to immunity as a sovereign nation.

“The final award is governed by the New York Convention. So, Nigeria’s status as a foreign sovereign does not deprive the court of jurisdiction to confirm the award,” P&ID said in its application in March 2018.

Legal experts familiar with the matter said on Friday, the Nigerian team might have serious difficulties convincing the tribunal to change its ruling on the matter on the basis of the terms of agreement the two parties signed.

HOW IT ALL STARTED

The Nigeria government was accused of reneging on its obligation to supply gas to P&ID under an agreement to build and operate an Accelerated Gas Development project to be located at Adiabo in Odukpani Local Government Area of Cross River State.

P&ID said the country’s negligence frustrated the construction of the gas project, thereby depriving it the potential benefits expected from 20 years’ worth of gas supplies.

In August 2012, the company the government notice for Arbitration.

In July, 2015, the arbitral tribunal found Nigeria culpable of the breach and liable to pay damages.

On December 23, 2015, the government asked for the award to be set aside, despite committing under the agreement that the arbitration decision shall be final and binding upon parties.

So, on February 10, 2016, the application was dismissed, paving way for the hearing on July 22 to 24, 2016 to determine the damages.

Two members of the three-man tribunal, Lord Hoffmann and Anthony Evans, held that P&ID’s expenditure and income should have been about $6.597 billion if government fulfilled its obligation under the agreement.

Both officials said the award should be paid together with interest at the rate of 7 per cent from March 20, 2013.

The third member, who is Nigeria’s former Attorney-General and Minister of Justice, Bayo Ojo, said although P&ID was entitled to compensation for the breach, its damages could not have been more than $250 million.

On January 31, 2017, the court gave the final award as $8.9 billion, which included additional $2.3 billion in uncollected interest as of March 2018.

However, few days to the end of the Jonathan government, a $850 million agreement was reached with P&ID.

But, Mr Jonathan opted to transfer the responsibility of disbursing the funds to P&ID to the then in-coming administration of President Muhammadu Buhari since he was at the exit door already.

However, on December 23, 2015, the Buhari government asked the tribunal to set aside the award completely.

Culled from AllAfrica

Continue Reading
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

Featured

Okuama Massacre: Military Declares Eight Persons Wanted

Published

on

By

The Defence Headquarters has declared eight persons wanted over their roles in the recent killing of 17 military personnel in Delta State.

The military released the list on Thursday at a briefing in Abuja.

Those declared wanted are Prof. Ekpekpo Arthur, Andaowei Dennis Bakriri, Akevwru Daniel Omotegbo (Aka Amagben), Akata Malawa David, Sinclear Oliki, Clement Ikolo Oghenerukeywe, Reuben Baru, and Igoli Ebi.

During the briefing, the Director, Defence Media Operations, Major General Edward Buba, called on Nigerians especially residents of Delta and adjoining states to assist the military with credible information that would lead to the arrest of eight persons allegedly responsible for the killing of seventeen soldiers in Okuama community in Delta State.

General Buba says the military remains determined to fish out the perpetrators of the heinous act in Delta State, reaffirming its commitment to rescue all kidnapped and abducted victims in Nigeria.

Continue Reading

Featured

How CJMR Has Championed Restoration of Justice to Unjustly Incarcerated, Condemned – Founder, Olujobi

Published

on

By

By Eric Elezuo

“At CJMR, we stand firm on our scriptural foundation: ‘Speak up for those who cannot speak for themselves, ensure justice for those being crushed. Yes, speak up for the poor and helpless, and see that they get justice…,” Pastor Olujobi 

Most citizens of the world are endowed with milk of human kindness, and are ever ready to lend a helping hand to folks in need, either for cash or kind. One of these citizens is a Nigerian of special breed, filled with compassion and zeal to assist wrongfully detained persons to regain their freedom. He is Mr. Hezekiah Olujobi, who is leading the fight against wrongful detention and elongated detention without trial with his Non-Governmental Organization, the Centre for Justice, Mercy and Reconciliation (CJMR).

The CJMR as stated, is NGO dedicated to promoting human rights and advocacy within the Nigeria Correctional Service and strengthening the rule of law in Nigeria Criminal Justice System, according to the Founder, Mr. Olujobi.

“Our area of focus are Advocacy, Alternative Dispute Resolution, Investigation, Cases review, Rehabilitation of individual upon freedom and Restorative Justice in Criminal Matter,” he added.

The CJMR as an organization, was established in 1999, and was officially registered in 2009. It has since then accumulated an enviable and proven track record of facilitating the release of individuals from death row, some of whom had been unjustly incarcerated for 18 to 28 years.

“Additionally, over 600 inmates have been freed from illegal detention after 4 to 12 years without trial. The organization has also established a Halfway Home that has benefited over 300 individuals.

“Our activities cut across the Correctional service in South West: Oyo, Odun , Ogun and Lagos States. We still have over 100 cases for intervention including 10 people on death row whom we strongly believed they are victims of wrongful conviction,” Olujobi stressed.

Hezekiah Olujobi, also known as a Pastor, for his vocation as a preacher of the gospel, who is the founder of CJMR, is currently working on two books to project the work of the organization so far.

The first, “Their Stories Behind Bars,” is a collection of narratives from individuals wrongfully sentenced to death and how the organization helped secure their rrlease, while the second book, “Their Hurts and Unforgettable Memories,” delves into the stories of victims and offenders, exploring their deep hurts and the healing process through restorative justice.

The following stories below as told by Pastor Olujobi, carefully epitomizes how far the NGO has gone to put smiles on the faces of individuals, who have otherwise lost hope of ever living their lives among free people again

Olaniyi Emiola’s Wrongful Conviction: My Belief in His Innocence

Olaniyi Emiola was sentenced to death based on witness testimony that was a case of mistaken identity. The armed robber apprehended at the crime scene insisted he was not the person being referred to and claimed he did not know Emiola at all. However, one of the victims, who recognized Emiola by the name “Abija,” insisted that he was the culprit. Emiola was known in the streets as “Abija,” not “Niyi,” yet the robber mentioned a “Femi Niyi,” not “Abija.” The man in question is Olaniyi Emiola, not Femi Niyi. During the trial, it was claimed that the robber identified the house of their leader to them, who is known as Abija,

In this controversial case, the conclusion of judgment of my noble lord, Hon Justice Jimoh of the Tribunal Court, was as follows:

“It is our considered judgment that the discovery of the second accused in the house pointed out by the first accused to the prosecution, and the discovery of the stolen items in the house shown to the police by the first accused, are admissible and well taken. Referencing R. v. Garbett (1847) 2 C & K 474 and R. v. Treacy (1945) 30 CAR 93, with these authorities in view, the second accused has been properly identified and linked with the commission of the crime charged.

Since the prosecution has adduced sufficient evidence to place the second accused at the scene at the material time, his alibi defense is logically and physically demolished.

This was established by the Supreme Court in the cases of Patrick Njovens vs. The State (1973) 5 SC 17 at 65 and Christian Nwosisi v. The State (1976) 6 SC 109 at 112.

It is my considered judgment that since the defense of the second accused has failed and, by the acceptable evidence of the prosecution witnesses, the accused has fallen into the warm embrace of the law, and I so hold.

SENTENCE: OLANIYI EMIOLA – The sentence of the Tribunal upon you is that you be hanged by the neck until you are dead or suffer death by firing squad, as the Administrator of this State may direct. May the Lord have mercy on your soul.”

This was the judgment that sent a man to darkness and anguish, leaving him to await execution in a solitary cell for 11 years without the right to appeal, luckily for him, the abolition of execution was announced in Nigeria.

Reprieve came when we visited Kirikiri Maximum Security Prison in 2007. We investigated the matter by analyzing the entire judgment and all the contents of the case file. We took up his case, amplified his voice of innocence, and refuted all the arguments in light of the existing facts recorded in the judgement.

Olaniyi Emiola was finally set free in January 2011, after 17 years had been wrongfully taken from his life.

One can only imagine what would have happened if execution had not been abolished in Nigeria.

CJMR’s Advocacy visit to the Oyo State Attorney General

The organisation has also taken its advocacy to the Attorney General’s office in Oyo State, and achieved certain parameters as represented in the narrative below:

“On Wednesday, March 20, 2024, the Committee for Centre for Justice Mercy and Reconciliation (CJMR) conducted an advocacy visit to the office of the Oyo State Attorney General. The purpose of the visit was to highlight the plight of numerous inmates who have been denied justice and are enduring the prolonged anguish of indefinite trials for capital offenses.

The primary goal of the visit was to bring to the Attorney General’s attention specific cases of individuals who appear to have been wrongfully accused of capital offenses and have been languishing in detention since 2015 without legal advice. Additionally, there are those who have been repeatedly taken to the High Court since 2017 without the prosecution presenting a single witness.

In a recent development on March 18 and 19, 2024, the Oyo State Chief Judge, Honorable Justice Iyabo Yerima, visited the custodial centers in Ibadan and Oyo. She firmly resolved not to address any capital offense cases, maintaining her stance throughout the jail delivery exercise. Consequently, 32 inmates were released from Agodi and 38 from Oyo, totaling 70 releases from facilities that house 1,250 and 827 inmates, respectively. The data clearly indicates that a significant proportion of detainees charged with capital offenses remain unaddressed.

Pastor Olujobi further noted that “During the CJMR’s visit, seven recommendations were proposed to enhance the efficiency of justice delivery by the Attorney General’s office, and a list of 32 individuals awaiting legal advice was submitted.”

The Attorney General, known for his humility and activism, pledged to collaborate with the CJMR.

He further acknowledged that “It is a profound injustice for individuals, even those apprehended with substantial evidence, to be detained indefinitely, risking the degradation of evidence and waning interest or resolve of witnesses. The slow turn of the justice system’s wheels can erode its very foundation.

“Similarly, it is an injustice for an innocent person to endure punishment due to procedural delays or inefficiencies.

The presumption of innocence until proven guilty is a fundamental principle of democratic societies, yet it is undermined when the process to establish innocence is plagued by excessive delays. The time for change is now.

Olujobi is also of the view that “The judiciary must move beyond a confessionary-based approach to prison decongestion and focus on those unjustly detained for capital offenses.”

From Darkness to Light: The Unraveling of Injustice and the Triumph of Freedom for Olusola Adepetu after 26 years behind bar

In this scenario, the police conducted a comprehensive investigation, and the defense attorney performed admirably. However, despite these efforts, the judge appeared to succumb to public pressure, reminiscent of Pontius Pilate’s historical decision, resulting in Olusola Adepetu being wrongfully sentenced to death.

Tragically, this miscarriage of justice led to the loss of 26 years of Adepetu’s life.

The appellant, a native of Ondo state was 34 years old at the time of his arrest, a father of 4 children with a broken home.

He was the owner of Olusola Naturalist Hospital. He was a Guru in herbal traditional-medicine, very popular with radio and television advertisements.

He cures all manner of ailment, he was a highlife socialite, he was a member of special marshal of Federal Road Safety Commission, due to the nature of his work as herbal traditional medicine healer he was highly connected with people in high places who always patronized him and in the world ravaged with deceases people always throng his office to seek healing for their ailments.

He is not a medical doctor but always referred to as Doctor Olusola.

All of a sudden, the light of his fame and popularity went off, he was enveloped with thick darkness. For a good 26 years he never walks under the moon nor is beaten by rain.

What happened?

His girlfriend was murdered in a mysterious way, three days later, her dead body was recovered by the police at the Express way, Sanyo, Ibadan and deposited at mortuary in Adeoyo state Hospital. Who must have done this?

Nobody knows till today. The relations who were in the shop of the father of his girlfriend who saw him when he came to pick the deceased and the bar man who saw him the previous day with the deceased pointed touch light on him.

Upon his arrest, rumors went round the whole city like wildfire and consumed the heart of men, same Radio and Television stations where his advertisements were being jingled, announced his arrest, all kinds of rumors went round the city, his case became a celebrated case.

He was consumed by the public adverse opinion.

With all kinds of rumors, the death of the lady was attributed to ritual killing, some said he cut the breast of the lady, some said he cut her private part for the ritual purpose.

At every court adjournment the whole court room and the premises will always be filled up with people. The case attracted the public interest. Like Pontius Pilate, the judge has no choice than to deliver the innocent man as a sacrificial lamb not for the world but for his likely hidden sin.

Light shines on his path again, when we unravel the case file documents with the dissenting judgement and the man regains his freedom after 26 years.

The critical question is: Who will advocate for the poor and helpless? It is us;
The Chief Judge, Attorney General, Commissioner of Police, and all stakeholders must be involved. And this where CJMR comes in, and the organization are doing it.

“We therefore call for wholesome assistance from all and sundry to sustain the tempo, and help our people, who graciously need the assistance,” Olujobi concluded.

Continue Reading

Featured

Binance Executive Detained in Nigeria Escapes from Custody

Published

on

By

One of the two Binance executives detained in Nigeria for alleged tax evasion and other offences, Nadeem Anjarwalla, has escaped from lawful custody, according to PREMIUM TIMES report.

Our sources said Mr Anjarwalla, 38, escaped on Friday, 22 March, from the Abuja guest house where he and his colleague were detained after guards on duty led him to a nearby mosque for prayers in the spirit of the ongoing Ramadan fast.

The Briton, who also has Kenyan citizenship, is believed to have flown out of Abuja using a Middle East airliner.

It remains unclear how Mr Anjarwalla got on an international flight despite his British passport, with which he entered Nigeria, remaining in the custody of the Nigerian authorities.

Authorities are also said to be working to unravel his intended destination in a bid to get him back into custody.

An Immigration official said the Binance executive fled Nigeria on a Kenyan passport. He, however, said authorities were trying to determine how he obtained the passport, given that he had no other travel document (apart from the British passport) on him when he was taken into custody.

Another source said the two officials were held at a “comfortable guest house” and allowed many rights, including the use of telephones, a privilege Mr Anjarwalla is believed to have exploited to plot an escape.

When contacted Sunday night on the escape of the Binance executive from detention, the Head of Strategic Communication at the Office of the National Security Adviser, Zakari Mijinyawa, said he would enquire and revert. He has yet to do so as of the time of filing this report.

Mr Anjarwalla, Binance’s Africa regional manager, and Tigran Gambaryan, a US citizen overseeing financial crime compliance at the crypto exchange platform, were detained upon their arrival in Nigeria on 26 February 2024.

A criminal charge was filed against the two executives before a Magistrate Court in Abuja. On 28 February 2024, the court granted the Economic and Financial Crimes Commission (EFCC) an order to remand the duo for 14 days. The court also ordered Binance to provide the Nigerian government with the data/information of Nigerians trading on its platform.

Following Binance’s refusal to comply with the order, the court extended the remand of the officials for an additional 14 days to prevent them from tampering with evidence. The court then adjourned the case till 4 April 2024.

Also on 22 March, the Nigerian government approached the Federal High Court in Abuja and slammed another four-count charge on Binance Holdings Limited, Mr Anjarwalla and Mr Gambaryan, accusing them of offering services to subscribers on their platform while failing to register with the Federal Inland Revenue Service to pay all relevant taxes administered by the Service and in so doing, committed an offence, contrary to and punishable under Section 8 of the Value Added Tax Act of 1993 (as Amended).

The defendants were also accused of offering taxable services to subscribers on their trading platform while failing to issue invoices to those subscribers to determine and pay their value-added taxes and, in so doing, committed an offence contrary to and punishable under S.29 of the Value Added Tax Act of 1993 (as amended).

Count Three of the charges accused the three defendants of offering services to subscribers on their Binance trading platform for the buying and selling of cryptocurrencies and the remittance and transfer of those assets while failing to deduct the necessary Value Added Taxes arising from their operations and thereby committing an offence contrary to and punishable under Section 40 of the Federal Inland Revenue Service Establishment Act 2007 (as amended).

The last count of the charges wants the defendants punished for allegedly aiding and abetting subscribers on their Binance trading platform to unlawfully refuse to pay taxes or neglect to pay those taxes and, in so doing, committing an offence contrary to and punishable under the provisions of S.94 of the Companies Income Tax Act (as amended).

The Nigerian government had, in the past three months, been cracking down on suspected money launderers and terrorism financiers, some of whom it alleged are using the Binance platform for criminal activities

The Nigerian government said over $21.6 billion was traded by Nigerians whose identities were concealed by Binance.

Source: Premium Times

Continue Reading

Trending