$9.6bn award: Why FG negotiated with P&ID —Malami

With the $9.6 billion arbitration award against Nigeria over a botched gas contract hovering like the sword of Damocles, the Attorney General of the Federation and Minister of Justice, Mr Abubakar Malami (SAN) spoke with some journalists on actions being pursued to cancel the vexatious award. Sanya Adejokun brings the excerpts.

IS the Federal Government intending to institute a new court process to challenge the P&ID contract?

It is important to give the antecedent relating to the case which will assist all of us in having a first information as to hat played out. The contract, in its own right, was a contract that was signed and executed by the parties in 2010. That was precisely five years before the government of President Muhammadu Buhari came into being. The award relating to the purported breach of contract was an award that was handed down precisely in June 2014 and that was a year before the government of President Buhari came into office. In essence, the Nigerian position of defence and associated things in terms of what led to the contract and the breach thereof were defences, engagement and execution that have taken place before the government of President Buhari came into office.

So, as at 2015 when the government of President Buhari came into place, first, there was a contract in existence which was executed. Again, there was an award in existence with the award having been made precisely in June 2014 and then, there were lawyers involved and engaged by both parties on the part of P&ID and on the part of the previous government even as at the time this government came into place. What I am saying in essence is that yes, there was a purported contract; there was a purported award; parties were in court before the tribunal but what I think is equally important to state is that while the arbitral proceedings were ongoing in Britain, there was an attempt during the same period before coming in place of the government of President Buhari by the lawyers that were engaged by the previous government to file a fresh action in Nigeria relating thereto with the hope of setting aside the order that was made.

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The lawyers that were engaged were engaged by the government that preceded that administration of President Buhari the case that was instituted in Nigeria pursuant to an award was a case that was treated by the lawyers that were engaged by the previous government and then at the case that was conducted by the same lawyers were inherited by the government of President Buhari and indeed there was an action in court, an action before an arbitration tribunal in the UK, an action before the Federal High Court in Nigeria and then conducted by the lawyers that were engaged by the previous government. That is the background that I think is material and relevant for the purpose of answering the question as to whether indeed there was an approach to court by the parties.

If government insists that the P&ID contract was fraudulent from the beginning, why did it negotiate with the company over the tribunal’s judgment?

The truth of the matter is that as at the time we came on board as a government, there was already in existence of an award and a quantum determination of around $6.9 billion or so. As at the time we came in place, the time within which we could have appealed it had already elapsed. There was no time for us to appeal because the previous administration had not appealed against the award when it was made in June 2014. With the lapsing of time to appeal, you could not have filed an application to either set aside the award or to stay execution. You required the leave of the tribunal to appeal the award and that leave could have been very difficult process because Nigeria as at then would have been adjudged to have slept over its right of appeal which you could do over a regulated time. The only immediate option open then was to consider the possibility of negotiating. That was what informed our decision to accommodate the possibility of negotiations but along the line of negotiations, many facts came to light inclusive of the fact that gave rise to the possibility of insinuations of fraudulent underhand dealings among the parties involved.

And for your information, fraud could be a found for setting aside an award without necessarily having to go through the route of seeking for leave. So, if you can establish fraud, there is no time limit within which you can raise it as against appealing the award or the decision of the tribunal on the basis of law or facts. So, when fraudulent insinuations manifest arising from the in the course of engagement it is only logical that Nigeria should have a consideration of investigation relating to the fraudulent elements which could afford the country an opportunity to have the entire award set aside if fraud can now be established.

It has been insinuated that the case that the government instituted at a Federal High Court in Lagos over the P&ID contract agreement was struck out for lack of diligent prosecution. How far is this true?

My reaction to that is as I stated earlier. The lawyers that were handling the case as at the time this government came into office were engaged by the previous government; as at the time when the award was made in June 2014 and when we came on board, we had cause to intensify the existing legal consortium and we brought in additional lawyers to strengthen the team. Even if indeed and in fact any case was at any point struck out, the implication is that it was struck out at a time when lawyers in engaged by previous administration were handling the matter because as at the time we came on board, all opportunities for appeal, setting aside, stay of execution were closed taking into consideration, that the time within which to appeal had indeed elapsed.

Both you and the Minister of Information and Culture, Alhaji Lai Mohammed, said President Buhari ordered an investigation. Has the investigation commenced?

There is indeed investigation being intensively and extensively carried out by agencies of government and indeed concerted. It is borderless and there are no limitations as to who and who can be invited and who and who cannot be invited. I wouldn’t like to be specific on personalities but I want to state categorically that those that were involved in the process of drafting the agreement, in the process of signing and executing the agreement, in the process of arbitration before the arbitral panel, in the conduct of trial before the Federal High Court relating to a subsequent case that was filed and all other personalities of interest, both local and international, are indeed being investigated to get to the bottom of what indeed transpired for the purpose of establishing existence or otherwise of fraud and fraudulent conspiracies between the parties or among the parties.

Is government trying to intimidate the judiciary and legislature by asking the Nigerian Financial Intelligence Unit (NFIU) to investigate functionaries of those arms?

What want to categorically state and make clear is the fact that the NFIU by their competence and capacities are well placed to have information relating to accounts of individuals and institutions without making any recourse to a third party. In effect, the idea of making a formal claim does not even arise because the NFIU is the custodian of information and they are very well placed by law to do forensic analysis of the information at their disposal. But then I am comforted further to note that the NFIU has indeed issued a formal statement to the effect that there is nothing of that nature taking place.

There was no investigation, there is no cause for that investigation as it is and if indeed there existed such cause, there could have been no basis for a formal request for it because it is the institution that is legally, logically, inherently vested with the capacities, competences and legal powers to have the information at its disposal. So, the information that it has indeed made a request to the institutions does not even arise because it is the legal custodian of the information and it is supposed to be the one passing out investigation and forensic analysis of the accounts where the need for so doing arises.