Despite the positive mood in Nigeria’s legal team that the country will succeed in its challenge against the arbitral award to Process and Industrial Developments (P&ID), a trio of influential Nigerians are mounting pressure on the presidency to settle out of court.
A former governorship candidate in Kwara state and two top executives of a Lagos-based oil company known to be close to President Bola Tinubu are leading P&ID’s lobby, according to presidency sources.
They stand to share over $500 million as commission if they succeed in persuading Tinubu to enter into a settlement agreement with P&ID.
They have also reached out to senior officials of the ministry of justice to help pile pressure on Tinubu, who is said to believe that P&ID does not have a good case against Nigeria.
Presidency officials informed our correspondent that the three lobbyists are trying to organise a meeting between P&ID officials and Tinubu during the United Nations General Assembly (UNGA) in New York next week.
In what was described by a presidency official as “scare mongering”, the three “musketeers” are saying should P&ID win the impending case before an English high court, Nigeria would have to pay the original award currently running into over $11 billion, interests inclusive.
However, Nigeria’s lawyers, led by Mark Howard, a British lawyer, are very confident that the arbitral award to P&ID will be upturned by the court based on a number of reasons:
- The “industrial scale of corruption” involved in the award of the ill-fated contract which P&ID did not deny but instead classified as “cultural obligation”
- The alleged forgery of engineering drawing which was discovered to be for another project in another country
- The legal infighting between P&ID and its litigation funder, VR Capital, over non-disclosure of corrupt payments to Nigerian officials in securing the contract.
Nigeria’s lawyers also believe it is near impossible for P&ID to enforce the award because of Nigeria’s sovereign immunity which protects the country’s assets.
The largest arbitral award in history — about $50 billion — was secured by former owners of the Yukos oil company against the Russian Federation in 2014, but it has become impossible to enforce.
Nigeria will also have a right of appeal if the high court rules in favour of P&ID.
LANDMARK CASE
Nigeria’s legal team sees the P&ID litigation as a test case in arbitration.
They are hoping to establish that the process by which a contract is secured can be of material significance to its legitimacy.
“Our case is: it was bribery to get the contract, ongoing bribery to keep everyone on board, bribery of lawyers,” Howard told the high court, alleging that two London-based British lawyers previously involved in the case had committed “serious misconduct”.
Developing countries are seen as victims of corruption-induced contracts that are not meant to be executed in the first place but are mere scams designed in connivance with unscrupulous government officials.
In a self-damaging move, VR Capital, a hedge fund firm backing P&ID, had filed a case in the US alleging that the company made illegal payments to Nigerian officials that violated the law.
This is considered injurious to the P&ID case and is expected to feature in the final judgment of the high court expected anytime soon.
In 2019, the hedge fund managed by VR Capital Group had bought a large stake in P&ID in anticipation of the pay-out.
In February 2022, a US court of appeal for the second circuit permitted Nigeria to request documents from P&ID stakeholders, including VR Capital.
One of the documents revealed that there was in-fighting between VR Capital and P&ID over failure to disclose material facts.
A division of VR Capital had written in May 2021 in a confidential London court of international arbitration filing that “regardless of whether or not these payments were made for corrupt purposes, they were unlawful”.
“As a matter of Nigerian law, any undisclosed payments to a public official by someone seeking a government contract is prima facie unlawful,” the court document reads.
The report said the payments VR Capital referred to as “unlawful” in its May 2021 filing were those made by companies linked to P&ID to Grace Taiga and Taofiq Tijani — two petroleum ministry officials around the time the gas contract was signed.
Taiga is facing prosecution for allegedly taking bribes to facilitate the award of contract in the P$ID case.
ROAD TO ARBITRATION
P&ID had entered into an agreement with Nigeria in 2010 to build a gas processing plant in Calabar, Cross River state, but the company said the deal collapsed because the Nigerian government did not fulfil its end of the bargain.
Claiming Nigeria breached the terms of the contract, P&ID took a legal recourse and secured an arbitral award against the country.
On January 31, 2017, a tribunal ruled that Nigeria should pay P&ID $6.6 billion as damages, as well as pre- and post-judgment interest at 7 percent.
Following the judgement, Nigeria applied for an extension of time and relief from sanctions.
The application was granted by Ross Cranston, a judge of the Business and Property Courts of England and Wales, in September 2020, thereby returning the case to arbitration.
Nigeria had alleged that the gas deal was a scam conceived to defraud the country.
Lawyers representing the federal government told the court that P&ID officials paid bribes to get the contract.
But P&ID denied the allegation and accused the Nigerian government of “false allegations and wild conspiracy theories”.