Mambilla: Nigeria May Be Jolted In France As Obasanjo Gets Into The Box At The Arbitration And Others Abscond

… The international court is set for Nigeria but with no good tidings in sight

At last, the four-year-old Case No. 26260/SPN/AB at the International Court of Arbitration of the International Chamber of Commerce (ICC) in Paris, France has reached the final stage. It is about the dispute on the Mambilla Hydroelectric Power project between Sunrise Power and Transmission Company, known as:

Claimant/Counterclaim-Respondent versus Federal Government of Nigeria known as Respondent/Counterclaimant. The Mambilla project has suffered setbacks since it was first conceived 52 years ago, and its survival still hangs in the balance before the ICC. Sadly, the chances of the Government of Nigeria sailing through the arbitration unscathed are looking gloomy.

Tortuous background:

The infamous Nigerian Mambilla Hydroelectric Power project was first conceived by the Military Administration of General Yakubu Gowon in 1972. It took another 10 years to build a roller-compacted concrete dam construction in 1982 under the Presidency of Alhaji Shehu Shagari. Not much was heard of Mambilla again for 18 years until 2000 when Mr. Leno Adesanya, first cousin of erstwhile Leader of the Yoruba, the ferociously patriotic Senator Abraham Adesanya, came to reignite the project. His Sunrise Power and Transmission Company Limited eventually facilitated a bilateral agreement in 2001 between Nigeria and China on the Mambilla power project which was signed in Beijing, China.

After this, technical partnership agreements were signed with Chinese hydroelectric dam construction companies for the Nigerian project. Subsequently, the construction of the Mambilla hydroelectric dam to generate 3,050 Megawatt of electricity was birthed in 2003 with the award of a Build, Operate and Transfer (BOT) contract to Sunrise Company, which was to provide private sector funds to finance the construction of the dam and operate it for 35 years to recoup its investment estimated at $6 billion while selling the electricity to the Nigerian grid at predetermined tariffs. Up to date, Nigerian Government has not made any payment to Sunrise Company.

Abrupt changes:

The 2000 to 2003 progress was disrupted by General Olusegun Obasanjo, the President of Nigeria from 2003 to 2007 who moved all electricity projects to his Office from the Ministry of Power, expunged BOT models from power sector contracts and replaced these with procurements. The former President secured $16 billion from the “excess crude funds”, split the Mambilla project into parts and proceeded to award the components to another company in 2007. Nonetheless, the Presidents who succeeded General Obasanjo, Malam Umaru Yar’Adua and Dr. Goodluck Jonathan cancelled the contracts of the components in 2008 and restored the full project contract to Sunrise Company in 2012.

Under President Buhari, the Minister of Power, Mr. Babatunde Fashola re-awarded the Mambilla project to yet another company in 2017, a step which led Nigeria to the Arbitration Court in France in 2021 after the settlements with Sunrise Company failed in 2020. At the arbitration, the Nigerian Government lawyers adopted the criminalisation strategies to avoid liabilities for any breaches or wrongdoings.

Arbitration Hearing:

In the last 20 months, ICC court accepted several plea submissions, statements of claims, statements of defence and counterclaims, witness statements, expert reports and several documents to support these items. The Court has reached the final stage and slated Hearing of the case for the fourth week of January 2025. The first day will be devoted to opening statements of the Panel and the litigants with the latter being allowed three to four hours each. The next day will be devoted to the cross examination of the Claimant while the remaining five days will be devoted to the cross examination of the witnesses and experts on both sides.

Witnesses of Defence:

As ICC pools all witnesses and lawyers together and meticulously assigns time durations to each one, the FGN will, however, not be able to present its star witnesses in the persons of two former ministers. These are Alhaji Abubakar Malami, former Attorney General of the Federation and Engr. Mamman Salleh, former Minister of Power. They both served under General Mohammadu Buhari and are the two most important defence witnesses who negotiated and signed the Settlement Agreements, on behalf of the Federal Government of Nigeria with Sunrise company, the Claimant.

First, in January 2020, Alhaji Abubakar Malami and Engr. Mamman Salleh signed a Settlement Agreement with Sunrise offering $200 million cash payment and Local Content contract. When Nigeria defaulted on this, these two Ministers again negotiated and signed another Settlement Agreement with Sunrise in March 2020 offering $400 million cash payment and with no Local Content contract. It is not clear why these two witnesses declined to accept the invitation to appear before the ICC Panel, but it is generally known that the Witness Statement of Alhaji Malami was fraught with many loopholes that it would be counterproductive for him to face cross examination. In the case of Engr. Mamman Salleh, his absence may be because he has already been discredited by the Government of Nigeria, and accused of stealing N33 billion (thirty-three billion Naira) of the Mambilla project funds.

Former Nigerian Minister of Power, Mr Babatunde Fashola who re-awarded the Mambilla project to another company in 2017 has been slated for 2 hours of cross examination on the processes which led to the re-awarding of Mambilla project without the termination of the 2012 award. The former Nigerian Minister of Agriculture, Engr. Adamu will also testify on what he and Alhaji Malami, both as serving Ministers, and two other Government Officials discussed with Sunrise in a settlement meeting in November 2019 in London which led to a Settlement Agreement signed in January 2020.

Witness Obasanjo:

While the testimony of former president, General Buhari is clearly at the behest of the Government of Nigeria and to defend the 2017 award of the Mambilla project in spite of the subsisting contract by the Yar’Adua and Jonathan Administrations, the role of former president, General Olusegun Obasanjo is not straightforward. It is not clear which arm of the Government of Nigeria he would be testifying for or against. His cross-examination has been slated for a whole day.

Unlike the other witnesses, the former Nigerian president, General Obasanjo veered into several issues in his witness statement before the Arbitration panel. These detours include the murder of Chief Bola Ige, his Attorney General and immediate past former Minister of Power; Federal Executive Council papers; and power sector activities related to the Third Term Agenda. In particular, General Obasanjo will explain to the Court why he replaced BOT awards with procurement contracts in the power sector and how he did not know that his Minister of Power awarded the Mambilla project in May 2003 as a BOT contract to Sunrise even though he was the president from 1999 to 2007. The former President will explain why it was necessary to enact the ICRC Act of 2005 which required all Ministers to obtain explicit approvals of the Federal Executive Council. His cross examination may be as complex as his recent BBC HARDTalk interview with Mr. Stephen Sackur (also tendered in evidence) where he was labelled “the grandfather of corruption in Nigeria”.

Other Witnesses:

In its search for truth and justice, the ICC panel will also accommodate other witnesses from Sunrise and the Government of Nigeria. These other witnesses can be classified into three categories:

A. Institutional Experts: These are mostly witnesses who are world-class experts and whose opinions are well respected. They are the likes of Professor Mark Pieth, Professor Sope Williams, Mr. Kiran Sequeira and Mr. Eric Russo. They are respected for their views on law and equity, corruption and lies, and evaluation and costs. At the Arbitration, Nigeria used its experts to raise counterclaims against Sunrise, and Sunrise Company had used its own experts to deflate the points raised by Nigeria.

B. Technical witnesses: These are persons, especially from the Government of Nigeria, who are brought to explain the inner workings of government operations like meetings of the Federal Executive Council, the award of government contracts, operations of the Ministry of Justice, etc.

C. Special interest witnesses: These are witnesses brought or encouraged by Sunrise, to debunk the Nigeria’s defence and counterclaims or to discredit key witnesses of Nigeria by raising very awkward instances like the BBC HARDtalk interview, Halliburton bribes, infidelity with Mrs. Moji Obasanjo (who is the sister of Mr Leno Adesanya, owner of Sunrise), 35-year mortgage of the house of Mr. Jide Agunloye (son of the 2003 Minister of Power, Mr Agunloye), the third term agenda, and other toxic issues.

The beginning of a New End:

The Arbitration will complete its work in January 2025 and may give its verdict in the first quarter of 2025, bringing the Arbitration ordered by Sunrise to a close. But this will not end the disputes on the Mambilla project. It will be the beginning of a new battle that may drag for another four to six years in France before it returns to Nigeria for another battle. Meanwhile, Nigeria Government, its lawyers, experts and high-profile witnesses, as well as the aggressive lawyers and witnesses of Mr. Adesanya’s Sunrise Company would have successfully painted Nigeria in dark and dirty shades at the international scene in France and portrayed Nigeria as the world headquarters of incompetence, filth, and corruption. The cross-examinations of Nigeria’s two former presidents, two former Attorneys General, and four former Ministers are primed ready to bring significant shame and dishonour upon Nigeria.

That the ICC verdict will not end the Mambilla disputes became clear before the commencement of the hearing when one of the anchors of the Nigerian Government sent an early warning to the court in December 2024 that it will appeal against the judgement if it is not favourable to Nigeria. This ominous warning will trigger appeals from either side. It is for justice that cases are dragged beyond the trial court to the Appeal and Supreme courts, but the consequences of this on the Mambilla project implementation are dismal. The take-off of the project that has been delayed for 40 years by maladministration and malfeasance will be delayed for at least another six years. The costs will escalate, and the pains will multiply for the 240 million people who, for now, share only a meagre 4,000 megawatts of electricity with incessant grid collapses and daily outages

Epilogue – hopes dashed:

In 25 years of the life of the 4th Republic in Nigeria, four democratic Administrations under four presidents namely, Obasanjo, Yar’Adua, Jonathan and Buhari failed to rise above the shady deals which kept the Mambilla hydroelectric power project locked up in chains. This is despite the stern determination of Presidents Yar’Adua (cut short by death) and Jonathan (cut short by election loss). President Bola Ahmed Tinubu, now presiding on the 5th Administration, has indeed raised hope and could cut the chains.

Without properly laid out electricity power infrastructure in Nigeria, the hope for emancipation and greatness held out by the President Tinubu Administration will be a mirage. Industrial and technological developments needed for productivity and national competitiveness to achieve socioeconomic stability will fade away, and pave way for national insecurity and anarchy.

e-Signed

Dr. Anthony Ibrahim,Truth and Justice Group.

Camberwell Green, London. UK

9 January 2025