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$9.6b Arbitral Award Saga: A Check On AGF & MDAs

By: Hameed Ajibola Jimoh Esq.

$9.6 billion arbitral award saga: A check on the effective coordination and supervisory powers of the office of the attorney-general of the federation on all federal government’s ministries, departments and agencies

On the 16th day August, 2019, an English Court sitting in England granted leave to a Foreign Company by name ‘Process and Industrial Developments Limited’ (which had entered into an agreement with Nigeria in a ‘Gas Supply and Processing Agreement (GSPA), executed on the 11th day of January, 2010)’, to enforce the arbitral award held in its favour against Nigeria, the sum which has cumulatively risen to $9.6 billion as at the time of the English Court’s Judgment of the 16th day of August, 2019, inclusive of the accruing interests. The accruing interest daily is 7% of the arbitral award which is about $1.2 million daily. Having read the soft copy of the judgment delivered by the English Court (though, I have not been able to lay my hands on the said GSPA) and after considering those background, facts and figures expatiated by the Honourable, the Presiding Judge of the English Court, I have been instigated to call for the check and assessment of the Office of the Attorney-General of the Federation to find out whether the Office of the Attorney-General of the Federation is actually able and or capable to effectively coordinating all the Federal Government’s Agencies, Ministries and Departments of the Federal Government. That is why this paper has been written in order to let the Attorney-General of the Federation to know that there are greater responsibilities placed on him by virtue of the office and to let him see the need to always effectively coordinate and supervise  all the Federal Ministries, Departments and Agencies and their activities. More so, this is to also encourage necessary probe-action by the Federal Government against whosoever that had undertaken such likely unfortunate project that is aimed at crippling the nation’s economy and the heritage of the generations of Nigerians to come.

First and foremost, it is important to state the clear provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution, which establishes the Office of the Attorney-General of the Federation in section 150 of the Constitution thus ‘150.—(1) There shall be an Attorney-General of the Federation who shall be the Chief Law Officer and a Minister of the Government of the Federation. (2) A person shall not be qualified to hold or perform the functions of the office of the Attorney-General of the Federation unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for not less than ten years.’. It is my humble submission that the Office of the Attorney-General of the Federation (Attorney-General of the Federation herein after referred to as the AGF) being the Chief Law Officer is such a General Counsel to all Federal Government’s establishments. Therefore, he supervises them in their functions, roles, transactions and operations. Therefore, one would have expected that the AGF must have contributed and or participated in the contract agreement leading to the arbitral award against the Federal Government of Nigeria-herein after referred to as the FGN.

Furthermore, in my humble view, with due respect to the FGN, I view that the award (which is somehow punitive to the Nigerian generations of present and those to come) was a self-inflicted harm coupled with avoidable gross negligence on the part of the Ministry of government and officials who were in charge as at the contracting stages, especially the Federal Ministry of Petroleum Resources and those legal counsel engaged to defend the suit at both the arbitration tribunal and the court. This is because, the agreement in my humble view, was a careless and reckless one which is likely to collapse the nation. I must also point out here that Clause 20 of the said agreement provides that ‘The Arbitration award shall be final and binding upon the parties’. Can one imagine?! So, if the Arbitration award (such as it is in this case) is final and binding, then, why is the FGN complaining about the award?! Also, the basis in the English Court could not have been able to succeed if the FGN were to challenge the Arbitral award but the FGN fails, with due respect, to also consider thoughtfully that the award is not only the money rather the entire decision of the Arbitration Tribunal. So, why did the FGN carelessly agree to such final and binding decision in its agreement initially without a condition or a saving clause?! At least, by now, students of contract in the undergraduate studying law would appreciate the importance of ‘Law of Contract’ by now and the need to digest and apply all its basic principles to practical life.

Also, arising from the contract agreement, some of the suspected acts of gross negligent conducts of which it will be unfortunate for this nation that the Office of the AGF actually participated in such contracts and the litigation without observing some of these harmful terms in the agreement are:

The lack of diligently prosecuting the suit that it instituted in Nigerian Court in Lagos, on the 9th day of May, 2016, challenging misconduct on the part of the Arbitration Tribunal, which was later struck out by the Nigerian Court for lack of diligent prosecution;

The FGN never applied to set aside the Final Award of the Arbitration Tribunal decided on the 31st day of January, 2017, which in law, will mean that the FGN was or is not objecting to the Final Award. And the FGN never took such step or file any process to challenge and or set aside the said Arbitration Award in any court even since the said 31st day of January, 2017 till the 16th day of August, 2019, when the English Court delivered its Judgment confirming the Award with accruing interests (which was about two (2) years since the Arbitral award was made).

Apart from the agreed terms in the agreement, Clause 20 of the GSPA, provides that ‘The Arbitration award shall be final and binding on all the parties…’.

Also, some persons in order to shift blames have been saying that the contract was entered into during the term of the late Musa Shehu Yar’adua and so that the present Presidency cannot be faulted. I beg to disagree with this view because the Office of the President of the Federation is a sole corporation which exists by virtue of the Constitution and it remains alive and whatever that an office did in office is held as the liability of the current office holder. So that we have to understand that as far as the law is concerned, it was the Federal Government that executed or signed the contract agreement and it does not matter whoever that was occupying the said office. The FGN must therefore try its best possible to ensure that it keeps protecting Nigeria’s heritage from being taken advantage of or looted by some ill-centred and selfish-carbal in the Country. These persons have the tendency to sell this country but we must not allow them because there is nowhere for us and our children or generations to go to for abode.

I therefore call on the Office of the AGF to please in the interest of Nigeria’s growth and progress, to carry out its supervisory roles to the people of Nigeria without any laziness or tiredness. Also, I humbly recommend that all fundamental contracts (or agreements) such as the ones that are likely to affect the nation should always pass through the Office of the AGF for necessary input, scrutiny and verification for approval before executing such contracts. More so, we are only aware of this particular contract, we do not know of the other ones yet to be discovered, thanks to the media and the social-media! So, I humbly recommend that the Honourable the AGF should send circular to all Federal Government’s Ministries, Departments and Agencies to submit all pending contracts to the his office with immediate effect for necessary scrutiny!

Finally, I humbly hope that the Office of the AGF would take this advice as much important as the AGF is saddled the responsibilities of Chief Law/Legal Officer and the Minister for Justice of the Federation, in the interest of Nigeria and her progress.

Email: hameed_ajibola@yahoo.com

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