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$9.6b judgment: FG draws battle line against P&ID

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There are indications that the federal government may go on the full offensive to fend off the $9.6 billion judgment obtained against the country in Britain by Irish firm, Process and Industrial Development (P&ID).

The first leg of the action is to file a stay of execution at the court when it resumes from vacation by month end.

After this, the government will file an appeal. This new position is contrary to an earlier plan to consider entering into another round of negotiation with P&ID.

Following a legal review, the government is convinced that the provision of the State Immunity Act 1978 (the Act) which bars UK courts from confiscating assets of a foreign state without the consent of that state, gives it a leeway in the matter.

The decision to go all out was taken on Monday at a meeting chaired by Vice President Yemi Osinbajo at the Presidential Villa in Abuja.

The more than two-hour session was attended by Finance, Budget and National Planning Minister Zainab Ahmed; Minister of Justice Abubakar Malami (SAN); Minister of Information Lai Mohammed; and Minister of State for Petroleum Timipre Sylva.

Others are Minister of State for Niger Delta Affairs Festus Keyamo (SAN); Group Managing Director of Nigerian National Petroleum Corporation (NNPC) Mele Kyari; Acting Chairman of the Economic and Financial Crimes Commission (EFCC) Ibrahim Magu; and Governor of the Central Bank of Nigeria (CBN) Godwin Emefiele.

The Federal Government’s team met with an American lawyer alongside Mr. Bolaji Ayorinde (SAN), who has been central to the handling of the case with P&ID.

Before the  meeting commenced, Malami met with the Chief of Staff, Mallam Abba Kyari, who took him to the President’s office.

Although none of those who attended the meeting spoke with journalists after the meeting, The Nation scooped the outcome of the session.

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A source said: “At the meeting, it was concluded that Nigeria must contest the judgment debt vigorously. We will take advantage of all legal options available to us when the court resumes later in September.

“We have drawn the battle line against P&ID. There are many loopholes in the judgment. We will engage in a fight-to-the finish on this case.

“The meeting resolved to immediately apply for a stay of execution of the judgment and thereafter, we will go on appeal to quash the $9.6billion award.”

On the attachment of Nigeria’s assets abroad, the highly-placed source added: “The chances of garnishing our accounts, including foreign reserves,  or seizing our assets, are very remote.

“P&ID has no legal window of enforcement of the judgment going by the State Immunity Act 1978 (the Act) of the United Kingdom. This is why the Irish company has resorted to blackmail.

Further findings by The Nation revealed that the Act bars UK courts from attaching assets of a foreign state without the consent of the state.

In an article, Quinn Emanuel Urquhart & Sullivan LLP (the largest law firm in the world devoted solely to business litigation and arbitration)  said the Act allows a written consent of a foreign state before the enforcement of a judgment which could lead to seizure of assets or freezing of accounts.

The March 20, 2019 article was titled “Sovereign Immunity in the United Kingdom—Lexology”

The firm  said in part: “Section 13(2) of the Act provides that:(a) relief shall not be given against a State by way of injunction or order for specific performance or for the recovery of land or other property; and (b) the property of a State shall not be subject to any process for the enforcement of a judgment or arbitration award or, in an action in rem, for its arrest, detention or sale.

“Pursuant to section 13 of the Act, state assets ‘shall not be subject to any process for the enforcement of a judgment or arbitration award or, in an action in rem, for [their] arrest, detention or sale’ unless the state has provided its written consent (see, for example, Gold Reserve Inc v Venezuela [2016] EWHC 153 (Comm), finding that Venezuela had submitted to arbitration in writing by entering into a bilateral investment treaty (BIT) with Canada) or the assets in question are ‘in use or intended for use for commercial purposes’ (section 13(2)-(4)). These provisions apply in respect to states alone as defined in section 14 of the Act, and do not therefore extend to separate entities (see question 8).

“See Hazel Fox and Philippa Webb, The Law of State Immunity (Oxford University Press, Oxford 2015), pp. 504-5.

“This provision is subject to sections 13(3) and 13(4) of the Act. Pursuant to section 13(3), a state may provide written consent to the grant of any relief against it. It follows that a state may consent to the grant of interim or injunctive relief against it; however, the mere submission to the jurisdiction of the UK courts does not constitute such consent.”

A Presidency source who was part of the closed door meeting  said that the meeting was to receive an update from the Federal Government lawyers over the case, on what next steps needed to be taken.

“We just invited our lawyers to update us on the matter and what next action needs to be taken,” the source said.

Another source, who spoke on the condition of anonymity, said: “We were summoned in respect of the judgment.”

Asked if there would be light at the end of the tunnel, the source said, “Sure! We are attacking it.”

A former President of the Nigerian Bar Association (NBA), Dr. Olisa Agbakoba, yesterday  urged President Muhammadu Buhari to establish a National Arbitration Policy through the enactment of an Executive Order.

Agbakoba made the plea in a September 2 letter to the President.

He said the incident would have been avoided, if the advocacy for a National Arbitration Policy had been embraced by government over 20 years ago.

In the  letter titled: “Need for an Executive Order on A National Arbitration Policy,” Agbakoba explained that a National Arbitration Policy, if put in place, will ensure that Nigeria’s interests are protected in its commercial relationship with foreign investors.

The former NBA President said the monumental award secured by a foreign company against Nigeria has “grave and far-reaching implications for the country”, considering that it represents almost 20 per cent of the nation’s foreign reserves, and 25 per cent of  national budget.

He said a National Arbitration Policy promotes national interest by ensuring that the resolution of disputes between Nigeria and foreign investors in relation to government contracts are determined by institutional arbitration mechanisms, which will have the seat of arbitration in Nigeria as existed at present in some other countries.

He urged the government to commence an immediate and urgent audit as he claimed to be  aware that there are a significant number of arbitral awards made against Nigeria.

“Going forward, I suggest that we establish a National Arbitration policy, represented by an enactment of an Executive Order that will commence the process and procedure of creating the policy. This will ensure that Nigeria’s interests are protected in its commercial relationships with foreign investors”, he advised.

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