Nigeria’s Loss of $9.6bn: Who’s Responsible?

By Eric Elezuo

On August 16, 2019, the Nigerian government received the greatest shock of its administration when a British Court awarded over $9 billion damages against it for failing to honour a contract in a landmark judgement.

The judgment, which was delivered by Justice Butcher of The High Court of Justice, Business and Property Courts of England and Wales, ruled against Nigeria’s objection to arbitration which in 2017 settled that the Nigerian government should pay $6.6 billion as damages to a company, Process & Industrial Development Limited (P&ID). The damages and interest add up to a figure above $9 billion.

Nigeria’s former Attorney-General, Mr. Bayo Ojo, was among the three member arbitration panel that gave judgement in favour of P&ID against the Nigerian government and at the same time secured the monetary award. While Mr. Ojo tried his best to ensure that Nigeria escaped with a paltry $250 million, the majority opinion of Lord Hoffmann and Anthony Evans, the two other members of the panel, ensured that Nigeria lost the case.

Hoffmann and Evans held that P&ID’s expenditure and income should have been about $6.597 billion if the agreement was duly performed by the government. They also insisted that the award should be paid together with interest at the rate of 7 per cent from March 20, 2013.

Ever since the judgement, blames have been traded between the present All Progressives Congress (APC) administration led by Muhammadu Buhari, and previous administrations dating back to the late Umaru Musa Yar’dua era.

Leading the blame game is the returnee Minister of Justice and Attorney General of Nigeria, Mallam Abubakar Malami. The Minister, who was reappointed by President Muhammadu Buhari, few days after the judgement described the ruling as the “consequences of the underhand dealings of the past administration”.

He said: “Sadly, in spite of the spirited and concerted efforts of the current administration to combat corrupt practices and rent-seeking in all its forms, Nigerians woke up on Friday, August 16, 2019, to the rudest consequences of the underhand dealings of the past administration that has resulted in the award of $9 billion against the Federal Republic of Nigeria, by a British court which ruled that Process and Industrial Development Limited had the right to seize $9 billion in Nigerian assets.”

The lawyer went ahead and specifically fingered the administration of former President Goodluck Jonathan as the culprit, saying he connived “with local and International conspirators in a bid to inflict grave economic adversity on the Federal Republic of Nigeria and the good people of Nigeria.”

Malami concluded his blame with a threat, stressing that the federal government would punish any government official whose action or inaction led to the award of $9 billion damages against Nigeria. He also promised that the government “will vigorously defend its rights to protect its people’s assets around the world against the enforcement of the judgement.”

It is worth knowing that the value of the penalty represents approximately a fifth of the country’s foreign reserves of $45bn. the fact of the case is itemised as follows:

  • The agreement, which set the basis for the current legal action, was a Gas Supply and Processing Agreement signed in January 2010.
  • If concluded, the deal would have offset a significant percentage of Nigeria’s energy deficit (Africa’s largest oil and gas producer has a notoriously epileptic power supply).
  • P&ID claims about $40m were expended on the project, but Nigeria did not meet its obligations and cost the company billions in damages representing future profits it had lost.
  • In 2013, after the deal failed, P&ID dragged the government to court and won a $6.6bn arbitration case against the Federal Government.
  • Four years later, the firm was awarded $6.6bn, with an additional $2.4bn included as accrued interest.
  • Nigeria for years resisted P&ID’s attempts to begin enforcement proceedings of the rulings in the US and the UK; the judgement by the British court now allows the firm to begin seizing Nigerian assets.
  • Under the Jonathan administration, Nigeria negotiated an out-of-court settlement with P&ID for a far smaller sum of $850m. However, the president left the payment to the incoming Buhari administration, which set aside the settlement and asked its lawyers to return to litigation.

Undaunted by the threats and name calling of the Buhari government, the Jonathan camp responded, throwing the blame to the feet of the present administration. It alleged that the administration failed to pay the $850million out of court settlement with P&ID just to spite the previous administration. The government has however, denied that it did not handle the case diligently.

In a statement, signed by a former aide of Jonathan, Mr. Reno Omokri, the Jonathan camp noted as follows:

“Former President Jonathan was not president in January 2010. During that time, he was completely shut out of power by an unelected cabal that ran Nigeria during the period of the ill health of the late President Yar’Adua, before the National Assembly courageously intervened on February 9, 2010.”

Jonathan assumed office in February 2010 and, according to Omokri, the deal had by then already been set in motion by Rilwanu Lukman, Umaru Musa Yar’Adua’s Petroleum Minister. The cabinet and close allies of the late president had refused to turn over sensitive documents to his deputy because Yar’Adua hadn’t handed over to him as constitutionally stipulated.

“That same cabal has resurrected and has now coalesced around President Muhammadu Buhari, with some of them being made either ministers, or formal and informal advisers. As a matter of fact, the main man behind that cabal is now one of the closest persons to General Buhari.”

Another dangerous twist was added to the crisis, when a statement purportedly made by P&ID surfaced, blaming President Buhari and Mallam Malami for the high cost of the damage. The statement detailed events that transpired since 2010 when the deal was first contracted.
An extract of the statement read thus: “The Attorney General’s pronouncements in the Nigerian press are a clear attempt to cover up his own incompetence and that of the Buhari Administration. This is a matter, which could have been settled shortly after he took office in November 2015 for $850 million. Instead, he personally took the decision to gamble on the arbitration and turned an $850 million liability into a $9.6 billion liability.”

It is okay that the Attorney General has sworn to prosecute and punish everyone involved and responsible for the loss, if it is eventually executed, one thing must be established, will he also prosecute himself if given the afore-mentioned, he also had a role to play.

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