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Opinion: P&ID vs. Nigeria: A Review- Reuben Abati

Published

5 years ago

August 20, 2019

Editor

By Reuben Abati

The report that a commercial court in the UK has ruled that Nigeria must pay a UK firm, Process and Industrial Development Limited (P & ID) a sum of $9.6 billion or have its assets in the UK to the tune of that amount forfeited has generated more than a little interest. For a country with a foreign reserve of $45 billion and sovereign debt profile of over $80 billion that judgment debt is quite a lot, potentially capable of rendering Nigeria even more technically insolvent. Dayo Apata, Permanent Secretary of the Ministry of Justice and Solicitor-General of the Federation has told the public that Nigeria will appeal the judgement and apply for a stay of execution to forestall the enforcement order that has been granted. Whereas this may be a logical step to take, even if it may achieve nothing in the long run other than putting more money in the pockets of counsel, there are specific issues that have been thrown up by Nigeria’s (mis)management of the case so far and the ruling of the UK court.

The first issue is Nigeria’s habitual disregard for the sanctity of contracts and terms of agreement, and the failure of Nigeria’s representatives in many cases to enter into agreements that are in the best interest of the country. The facts of the case in Process & Industrial Development vs. Federal Republic of Nigeria (2019) EWHC2241 (Comm), by way of summary are as follows: In January 2010, the Federal Republic of Nigeria (FRN), through its Ministry of Petroleum Resources entered into a Gas Supply and Processing Agreement (GSPA) with P&ID. Under the terms of the agreement, Nigeria “was to supply natural gas (wet gas) at no cost to P&ID via a government pipeline to the site of P&ID’s production facility.” P&ID was required to construct and operate the facility, process the wet gas and return to the government of Nigeria, lean gas to be used for power generation at no cost to the government of Nigeria. P&ID was entitled to other derivatives stripped from the wet gas. The GSPA had a tenure of 20 years from the date of first supply of wet gas. Clause 20 of the GSPA provided for (a) the agreement to be construed in accordance with the laws of Nigeria; (b) in the event of a dispute over the interpretation or performance of the Agreement, which cannot be resolved amicably, either party will serve on the other a notice of arbitration, (c) the Arbitration award shall be final and binding upon the parties and (d) “the venue of the arbitration shall be London, England or otherwise as agreed by the Parties.” Two years later, a dispute arose between the P&ID and the Nigerian Government, and as this could not be settled amicably, the former served a notice of arbitration on the Nigerian government on the grounds that Nigeria had failed to make Wet Gas available in accordance with the GSPA.

The matter went before an Arbitration Tribunal, under the Rules of the Nigerian Arbitration and Conciliation Act 2004, with London, England as place of Arbitration. After affirming its jurisdiction in the matter, the Tribunal began its procedural hearing to determine whether or not there was any repudiatory breach of contract. At this point, there was an attempt by the Ministry of Petroleum to reach a settlement agreement with P&ID to the tune of $850 million, payable in instalments. This was submitted for Presidential approval a week to President Jonathan’s departure from office. It would have amounted to tying the hands of the incoming government to grant the approval for the payment of that sum. Meanwhile, the Arbitration Tribunal had bifurcated the case and by July 2015, it affirmed that indeed Nigeria had failed to perform its obligations under the GSPA and then unanimously decided that P&ID was entitled to damages with interest. It took the new Nigerian government more than 4 months to respond. The excuse given for the delay, by Ms. Folakemi Adelore, witness for Nigeria, was that there had been a change of administration in Nigeria and that Ministers, including the Attorney General had only just been appointed. Nigeria asked for an extension of time to act on the outcome of the Arbitration Tribunal.

The Commercial court led by Phillips J. dismissed that appeal and the explanation for the delay at the time. Unsuccessful in having its way in England, Nigeria took up the matter at the Lagos Judicial Division of the Federal High Court of Nigeria, seeking essentially the same reliefs that were rejected by Phillips J. When notified of the proceedings in the Lagos High Court, P&ID dismissed the proceedings as “abusive and as a deeply unattractive attempt to forum shop”. There was a back-and-forth exchange of emails between the parties involved and the Tribunal over the meaning of venue or seat of arbitration. The Tribunal would eventually rule that London is the seat of arbitration “in the juridical sense”. The Nigerian government then went back to the Lagos High Court to set aside the Tribunal’s Procedural Order No. 12 and got favourable judgment. The Arbitration proceedings in London continued nonetheless to determine the quantum of damages and on January 31, 2017, the Tribunal issued its Final Award. The Tribunal insisted that P&ID would have played its own part in the contract if Nigeria had not repudiated its own obligations. It therefore ruled in favour of P&ID and ordered Nigeria to pay US$6.597,000, 000 being net present value of the profits which would have been earned by the P&ID. The Federal Government was also asked to pay interest on the amount at 7% per annum from March 2013. This final ruling was given in 2017. The Nigerian Government refused to pay and also failed to appeal the ruling! Why?

It may be routine conduct in Nigeria to ignore court orders, and assume that nothing will happen but things don’t work like that in the international domain. In March 2018, P&ID went to the Commercial Court in England to institute proceedings for the enforcement of the Final Award as declared by the Arbitration Tribunal. The Nigerian Government again did not respond in time. It waited till October 2018 before it finally acknowledged service and applied for relief for sanctions. The matter would finally be heard by Justice Christopher Butcher. It should be noted that on all the issues raised before the court of Butcher J. viz: the seat of arbitration and the order of the High Court of Lagos, issue estoppel, the conclusions of Procedural Order No. 12, (that is the ruling of the Arbitration Tribunal), public policy, pre-award interest and whether or not, the Final Award in favour of P&ID was excessive and punitive, the Court found in favour of P&ID on all the issues. Justice Butcher’s ruling raises cogent and recondite points of law, in a learned and rigorous manner; but in one word, he butchered Nigeria. The manner in which he did so, I intend to indicate shortly.

For now, what is clear to me is the reckless manner in which Nigerian officials often enter into agreements, on behalf of the country, without paying attention to the small print of the agreement and thinking through the feasibility of the agreement entered into. The net result is that the country incurs liabilities that are detrimental to corporate interest. On the face of it, the GSPA with P&ID would have been beneficial to Nigeria, particularly in terms of the constructive use of associated gas and the supply of lean gas to the national electricity grid for both industrial and domestic use. The GSPA was signed by the Ministry of Petroleum on behalf of Nigeria: was the Ministry not in a position to know the volume of wet gas that would be required to fulfil Nigeria’s obligations? What happened to the proposed pipeline? It would appear as if Nigeria signed the agreement in 2010 and just went to sleep. Where international contracts are involved, and we breach the terms of agreement, we end up projecting the country as an unfit and risky destination for investment. Even the private sector has been accused of failing to respect contractual agreements, the most recent example being the case of Nigerian airline operators and Boeing which has more or less blacklisted Nigerian airlines from leasing its aircraft. As it is with the Federal Government, so it is with the states. The Lagos Metro line project conceived by the Lateef Jakande administration in 1983 could have solved the perennial mass transit crisis in Lagos but it was soon politicized. When the Buhari military regime came to power, the project was eventually cancelled in 1985, without regard for the terms of the contract. The foreign contractor went to court and Nigeria had to pay a penalty of more than $78 million. The contractor was compensated for doing nothing!

Another issue is the lack of diligent prosecution of cases in which Nigeria is involved by those whose duty it is to do so. I assume that this is due to our tendency to either politicise everything or focus more on personal interests, or failure on the part of either representing counsel or the Attorney General’s office. As stated, it took Nigeria in this case about five months to respond to the initial ruling of the Arbitration Tribunal in London. The excuse that Nigeria was busy with elections and that new Ministers were not in place until November 2015 naturally appeared strange and laughable. When final ruling was given, Nigeria also did nothing. It had to wait until P&ID sought enforcement.

Butcher, J. in his August 16, 2019 ruling made heavy weather out of several acts of omission on the part of the Nigerian authorities. He observed in one instance, that “…the FRN had remedies for any procedural unfairness, but it did not utilise them”. Nigeria could also have objected to Procedural Order No. 12 or question the Final Award. In the words of Butcher J., “it did neither and the time for doing so is long past.” This is a serious indictment (see paragraphs 64 -66 of the ruling). The energy that should have been devoted to the Arbitration in London was diverted towards obsession with “seat of arbitration” and getting a favourable judgment from the Lagos High Court which in Nigeria’s contention was the “supervisory court”, a point about “sovereignty” both the Tribunal and the Court dismissed. Nigeria failed to pursue relevant questions: Questions for example about the quantum of damages. Or the tax that would have accrued to Nigeria through P&ID. Besides, what is the profit value of Nigeria’s 10% equity? And why were questions not raised about in-door management rules? It is also curious that Nigeria failed to insist on something quite obvious: the competence and the failure of P&ID to build the facility stated in the GSPA. Equity aids the vigilant, not the indolent. Could the Nigerian team have been making needless mistakes in order to help the other party? In a country that is perpetually in search of patriots, particularly in official corridors, this is a relevant question.

The Commercial Court in London has held that the Final Award by the Tribunal in favour of P&ID is not punitive or excessive, rather it is compensation for damages suffered. The Court gave an order enforcing the Final Award. There is no guarantee that Nigeria will succeed with either its appeal or its request for stay of execution. Whatever happens, the (mis)handling of this case requires introspection and steps to be taken to ensure that this kind of embarrassment does not occur again, hoping that there are no such similar cases in other jurisdictions or in hibernation which may soon come to the knowledge of the Nigerian public. The success of P&ID may well embolden other parties with similar issues with Nigeria to go to court. Our case is not helped either by the politicization of the matter with the on-going trading of blames. It may be necessary for the National Assembly when it returns from its recess to conduct an inquiry into how Nigeria, with all the concerns about revenue and growth, is now faced with a judgment debt of $9.6 billion, with daily interest accruing. Who are the state officials and their collaborators if there are any, who failed to ensure due diligence, both at the level of the contract and the management of the dispute with Process and Industrial Development Ltd? Why was wet gas not made available? Did the Attorney General’s office even vet the GSPA at all? From all indications, the dispute could have been settled out of court. Why did that option fail? $9.6 billion is about 20% of the country’s external reserves and 2.5% of GDP. Every single person, dead or alive, lawyer or state official, who has a hand in this mess must be called out.

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Lagos-Calabar Coastal Highway: Prioritize Existing Unfinished Projects, Peter Obi Tells FG

Published

3 days ago

April 22, 2024

Eric

Mr. Peter Obi, the Labour Party’s presidential candidate in the 2023 general election, has advised the federal government to prioritize existing unfinished projects spread across the country instead of the Lagos-Calabar coastal highway project.

Obi, in a series of posts on X (formerly Twitter) on Monday, stated that the project was a misplaced priority given the numerous unfinished roads throughout the country.

The former governor of Anambra State mentioned that the budget allocated to the Ministry of Works is insufficient for significant progress on the country’s various unfinished roads, much less their completion.

Obi therefore, advised that the government prioritize the existing infrastructural projects in the country before embarking on any new and colossal projects like the Lagos-Calabar super highway project.

“The Federal Ministry of Works 2024 capital budget of N892,461,262,656.00, additional funding from multilateral loan projects of N94,828,535,243.00, alongside other expected contributions from sources like the China-Exim Bank and the World Bank, will not be enough for serious work on all the critical roads, some of which I enumerated above, let alone their completion.

So, why embark on another huge project that will not be completed in the next 20 or 30 years?

“To do so will only exacerbate the problem of abandoned, uncompleted projects that are not contributing to economic growth and overall development.

“Therefore, while acknowledging the potential benefits of coastal superhighway infrastructure, I urge prioritization of our existing uncompleted projects. We must allocate resources towards repairing and completing existing infrastructure.

“In any development formula, the primary focus should be on completing and rehabilitating existing infrastructure rather than embarking on colossal new projects that may never reach completion within the next 30 years,” Obi said.

Back in March, the Federal Government began constructing the 700-kilometer Lagos-Calabar Coastal Highway, designed to extend through 9 states with two spurs leading to the Northern States.

Recall that former Vice President, Atiku Abubakar, had earlier described the project as a fraud.

“Umahi had announced that Hitech would fully fund the project, and based on this, there was no competitive bidding. He (Umahi) then said that Hitech could only raise just 6% of the money for the pilot phase. This smacks of deceit,” Atiku said.

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2027 Presidential Race: Opposition Parties Under Attack

Published

4 days ago

April 21, 2024

Eric

By Eric Elezuo

While it is still a whole three years before the next general election in 2027, The Boss has learnt that opposition parties in the countries are being muffled to pave the way for the ruling All Progressives Congress (APC) to return to, and retain power.

From the Peoples Democratic Party (PDP), to the Labour Party (LP), and down to the New Nigerian Peoples Paty (NNPP), crises have engulfed the rank and files, in what a source told this paper was the attempt and making of the ruling party, APC, to decimate, destabilize and make redundant the machineries of the opposition parties.

It is believed that by 2027, the apparatuses holding together the various opposition parties would have weakened irredeemably to the extent the country would seemingly nosedive into the inglorious one party state that every civil right advocate and democrats abhor.

It is alleged that all the crises in all the opposition parties are being engineered by the President Bola Tinubu-led ruling APC, with the hope of getting the fibres of their system weakened, thereby luring the members of the crisis-ridden parties into the APC.

Slightly one year after the last presidential election, the two major opposition platforms, Peoples Democratic Party (PDP) and the Labour Party, have separately been embroiled in a crisis of confidence which has diminished their capacity to provide viable opposition to the ruling All Progressives Congress (APC).

The crises in both opposition parties got to a head. The Labour Party led by its national chairman Julius Abure held its much-opposed national convention which was boycotted by its 2023 presidential candidate, Peter Obi; its only governor, Alex Otti of Abia State; federal and state lawmakers elected on its platform, and the organised Labour.

In the Labour Labour, members have been embroiled in endless battle of supremacy with a faction led by Mr. Apapa steadily contesting the leadership of Julius Abure.

Consequently, the presidential candidate of the party in the 2023 elections, Mr. Peter Obi, reverence as a leader in the fold, noting that whatever the party faces presently, that Nigeria’s problems are far bigger than the crises in his party.

The LP has been embroiled in crises — ranging from allegations of misappropriation of funds, and leadership tussle, to calls for the resignation of the party’s national chairman.

TheCable reported that “On March 27, the LP conducted a national convention in Anambra state where Julius Abure was re-elected as its national chairman.

Obi did not attend the convention, fuelling speculations that he may be mulling over ditching the LP for another platform.

Speaking during an appearance on HaveYourSay247, an interactive online session hosted by Rudolf Okonkwo over the weekend, Obi said he is confident that the crises rocking the LP will soon be resolved amicably.

“Whatever is happening in the Labour Party is so minute compared to what is happening in the country,” Obi said.

“So, for me, it is something we will resolve amicably, and it is not anything to worry about. Let us worry about the country.

“Let us worry about how the average Nigerian would be able to have a means of livelihood to be able to eat, that should be our worry.”

Obi said he has no interest in being the party’s leader but only to make sure things are done properly.

“I don’t see what I do in politics as being the leader of any place or not. My position is that just like I always say, I am not desperate to be president of Nigeria, I am desperate to see Nigeria work because I know it can work,” he added.

“We have a more desperate situation. Parties are just a means to be able to contest elections. What is important is that being a leader of a party does not reduce the price of food.

In the PDP, the shenanigans of former Rivers State Governor, Mr. Nyesom Wike, has practically kept the party in constant crisis with many observers concluding that the now Minister of the Federal Capital Territory (FCT) is working for the APC, and is just a mole in the PDP. Wike has denied the allegation, however,

But news filtered in last week as that the immediate past Governor of Rivers State, and Minister may have concluded plans to attend the much advertised National Executive Council (NEC) meeting of the main opposition party, the Peoples Democratic Party (PDP), billed to hold on Thursday, in Abuja.

Impeccable source, who is in the know, told The Boss that the minister, whose membership of the PDP is yet to be revoked even as he frolicks with the ruling All Progressives Congress (APC), and serving in the President Bola Tinubu government as a minister.

The Source told The Boss that Wike’s impending presence at the NEC meeting on Thursday was not unconnected with plans, already hatched with some governors, to weaken the opposition PDP.

“Yes, we have on good authority that FCT minister, Wike is planning to attend the NEC meeting tomorrow all in a bid to weaken the fabrics of the PDP, and pave the way for the continuation of the Tinubu administration come 2027, and by extension, relapse Nigeria to a full blown one party state.

“From every indication, Wike and his co-travellers, are bent on unleashing the same crisis ravaging the third force, Labour Party, and Senator Rabiu Kwankwaso’s Nigerian National People’s Party (NNPP) on the PDP for the APC to remain the only political party in the country, and ensure that Tinubu has no challenger, come 2027,” the Source said.

It would be recalled that Wike has boasted over and again that there’s no opposition against Tinubu’s re-emergence in 2027, and that they have made sure of that. He has been compensated with the Ministerial job after he withdrew support for his party, and supported the APC and Tinubu to emerge as national government.

The Source further revealed that in the attempt to actualize the intended one party state, a lot of funding is ongoing to ensure that concerned stakeholders are ‘settled’ handsomely.

Wike, prior, during and after the 2023 general elections, has been floating in between the two major political parties; the APC and the PDP. While he claim to still be a member of the PDP, he is functioning as a minister in an APC government, mocking the inability of his party to discipline him.

While political stakeholders concluded that the outcome of the Thursday’s PDP NEC meeting will determine the path Nigeria’s political trajectory will take, and that it may portend the end of multi-party system and political democracy if Wike succeeds in his plan; every page of what finally transpired at the meeting pointed to the fact.

The much touted removal of the party chairman, who is believed to be a crony of the Abuja minister, Damagum, retained his seat, with his executives.

“It is very clear to everyone that a lot of money politics is being played to cajole many loyal members of the party, forcing them into frustration, and eventually it of the party. The option afterwards, will be the APC. This, will for all intent and purpose actualize the intended one party state as an APC agenda.

The Musa Rabiu Kwankwaso-led NNPP is not faring better either. The only governor under their ticket, Abba Kabir Yusuf, just had the confidence of their party on him withdrawn. He was fighting for his political life until suddenly it was announced the the APC in Kano has collapsed its structure into the NNPP.

“This is just another APC strategy to actualize their hidden intentions. Time will reveal the very sinister agenda they harboring,” an analyst said.

Much as 2027 is still three years away, but intrigues are in play to render Nigeria a one party state, and perpetuate the APC in power. The three other opposition parties are basically under attack to bring to pass this unpopular agenda.

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Akwa Ibom Government, Governor Umo Eno Receive Top Honors at the 10th Wonders of the World Expo in Lagos

Published

4 days ago

April 21, 2024

Admin

The Akwa Ibom State Government and Governor Pastor Umo Eno were recognized with Travellers Awards at the 10th Wonders of the World Expo in Lagos for their sustained enhancement of infrastructure, support for local talent, and dedication to investment in the tourism sector. The ceremony took place at the National Museum in Onikan, Lagos.

While Akwa Ibom won the Most Active Tourism State of the Year, Governor Eno was adjudged the most Tourism-Friendly Governor of the Year at the event that had Minister of Tourism, Mrs. Lola Ade John in attendance.

According to Amb. Ikechi Uko, Founder/Publisher of ATQ Magazine, the organizers of the event which is in its tenth edition, Akwa Ibom State won the top prize “in recognition of its valiant and resourceful efforts to drive and sustain domestic tourism by promoting the industry.

‘In 2023, Akwa Ibom was one of the states that hosted World Tourism Day (WTD ) events. The state also organized the famous Christmas Unplugged, which featured music, food, and cultures from all 31 LGAs as well as ensured friendly policies.”

While hoping that the Travellers Awards would spur Akwa Ibom to do more to dominate the domestic tourism industry, the organizers hoped that the state would gradually evolve into one of Nigeria’s top international tourism destinations.

That was not all, the state Commissioner of Culture and Tourism, Sir Charles Udoh was also recognized as one of the Top 100 Tourism Personalities in Nigeria for demonstrating exceptional leadership and innovation in the travel and tourism industry, while other Akwa Ibom indigenes and entity were also celebrated: Mrs. Ime Udo, Honorary Special Adviser to the Governor( Tourism) won Tourism Promoter of the Year, Favour Udo won Tourism Photographer of the Year, Loretta Effiong and Prince Uduak Sunday (Qua Tours) were listed among the Tourism Personalities of the Year and Ibom Air won Airline of the Year International.

In his remarks, Sir Charles Udoh, who represented the Governor at the event, thanked the organizers for the awards and noted that Akwa Ibom is certainly enjoying the golden era when it comes to tourism development. He stated that Governor Umo Eno is very keen on making Akwa Ibom a leading tourism destination with his programmes and policies.

He revealed that with the new Victor Attah International Airport nearing completion, the purchase of a ferry for the Oron-Calabar route, new developments along its coastline and the restoration work that will be done at all its major tourism sites, Akwa Ibom is well on the way to becoming the number one destination for all domestic and foreign tourists.

In her speech, Tourism Minister, Mrs. Ade John hailed the organizers for hosting the Expo, where practitioners were lectured by top experts while also rewarding those who have excelled in the past year.

She affirmed that her ministry is open to partnership with public and private sector operators, adding that tourism development can only be successful through collaborative efforts.

The event, which attracted leading and budding tourism professionals, also featured interactive and entertainment sessions.

Apart from Sir Charles Udoh and Mrs. Ime Udo, the Akwa Ibom State delegation, also included: Mr. Michael Effiong James, Senior Special Assistant (Lagos Liaison) to Governor, Mrs. Eme Bassey, Special Assistant to Governor (Lagos Liaison) and Akparawa John Offiong, Deputy Director ( Culture) Ministry of Culture and Tourism.

More photos below: