With Malami’s Coordination, Nigeria Floors P&ID, Gets Favourable UK Court Ruling

Following spirited efforts by the Attorney-General of the Federation and Minister of Justice, Mr Abubakar Malami (SAN), in coordinating other top government officials on the thorny legal tussle, a United Kingdom Commercial Court yesterday held that Nigeria had successful established a prima facie case against Process and Industrial Development Limited (P&ID) in the Gas Supply Processing Agreement (GSPA).

It is notably a giant stride in International commercial law and is traceable to the ingenuity of the leadership of the AGF, Malami.

This comes less than 24 hours after Malami said the Federal Government had learnt lessons from the $9.6billion case, and had expressed the determination of the government to make Nigeria a hub for arbitration, as part of lessons learnt from the dispute.

“The whole hitches of saga associated with P&ID was indeed a product of corruption, fraud and non-compliance with processes and procedures,” Malami said at an International Conference on African Arbitration.

The court granted Nigeria’s application for extension of time to set aside the $9.6bn arbitral award against the country.

The judge, Sir Ross Cranston, said Nigeria successfully established a prima facie case of fraud against P&ID in the gas supply contract.

He held that Nigeria acted reasonably well and that the delay in bringing the application was not deliberate.

According to him, the balance of fairness necessitated that Nigeria be given the opportunity to argue her case to set aside the judgment.

The judge said: “With that as background, I find persuasive Mr Howard’s submission that the fairness factor does have an impact in challenges where there is strong prima facie evidence of fraud, certainly of the through-going character alleged in this case.

“Not only is the integrity of the arbitration system threatened, but that of the court as well, since to enforce an award in such circumstances would implicate it in the fraudulent scheme. Conclusion on the Kalmneft factors”

The judge further held that the delay in this case was extraordinary and weighed heavily on the side of the balance against an extension.

“In my view, however, other factors bring it down in favour of an extension.

“As I have explained, the delay is not in my view the result of a deliberate decision made because of some perceived advantage, and in all the circumstances Nigeria has acted reasonably”, the judge held.

He held that given the strong prima facie case of fraud which Nigeria had established, “the position is along the lines of that identified in Terna, where Popplewell J identified the substantial injustice an applicant would suffer in respect of the underlying dispute if deprived of the opportunity of making a challenge should an extension of time be refused: Terna Bahrain Holding Company WLL v Bin Kamil Al Shamsi [2012] EWHC 3283 (Comm), [2013] 1 Lloyd’s Rep 86, [33].”

He further held: “For the reasons I have given, P&ID has contributed to the delay, and it will not by reason of the delay suffer irremediable prejudice in addition to the mere loss of time if the application is permitted to proceed.

“Although not a primary factor, fairness in the broadest sense favours an extension in this case. For the reasons given, I grant Nigeria’s applications for an extension of time and relief from sanctions.”

On his part, Malami, in a statement that was signed by his Special Assistant on Media and Public Relations, Dr Umar Jibrilu Gwandu, said that the UK High Court’s decision was a good one for the country, in its drive to stamp out corruption from its land.

He pointed out that the Buhari Administration, having inherited this dispute from the previous administration, only recently uncovered evidence that the GSPA was a sham commercial deal designed to fail from the start, and that its subsequent arbitral award was based on fraud and corruption.

The federal government relied on a number of ongoing investigations across multiple jurisdictions, including the US, to build and argue its case.

“The Federal Republic of Nigeria is pleased with the outcome from the High Court hearing today.

“This is a major victory in our ongoing fight against the vulture-fund-backed P&ID, to overturn the injustice of the multi-billion dollar arbitral award.

“In light of the new and substantive evidence presented regarding P&ID’s fraudulent and corrupt activities, the Court has granted our application for an extension of time to hear our challenge out of normal time limits.

“The federal government will now proceed to a full hearing of our fraud challenge in the coming months.

“Investigations into the GSPA are ongoing, and we are firmly committed to overturning the award – no matter how long it takes – to ensure that this money goes towards Nigeria’s future, not into the pockets of millionaires trying to exploit our country”, the statement added.

Malami had vowed to prosecute all government officials involved in the failed P&ID gas to power project.

In addition, in order to save the country from such embarrassing situations in the future, Malami had said the government would create a well-resourced, functional, efficient and responsive desk in the Solicitor’s Department where contracts, memoranda of understanding and agreements containing financial thresholds proposed to be entered into by the Ministries, Departments and Agencies (MDAs) of the FGN shall undergo a technical multi layered legal analysis, review and vetting before execution.

“The aim is to reduce the incidence of avoidable contractual obligations and commitments to which the FGN is exposed by some of the MDAs which have attracted to the FGN debts running into billions,’ he said.

While accusing the previous administrations for the incident, which he said might plunge the country further into economic woes, the AGF said the current administration had viewed with serious concerns the underhand manner by which the negotiation, signing and formation of the contract was carried out by some vested interests in the past administrations in connivance with their local and international conspirators all in a bid to inflict grave economic adversity on the country.

By this act alone, the government, through the sagacity of Malami, set a precedent in securing such a relief for the country, which hopefully, will be decided in the country’s favour eventually.