The Process and Industrial Developments, on Sunday, September 1, 2019, expressed its readiness to negotiate with Nigeria over the $9.6 billion judgment of a United Kingdom court that may authorise the company to seize the nation’s assets to offset the judgment debt.
The company, however, advised the President Muhammadu Buhari-led Federal Government to “appoint an authorised party to enter into real negotiations” instead of what it called the Nigeria’s “baseless slander and sham investigations against the P&ID and its founders.”
This was contained in a reply to The PUNCH’s enquiry about the company’s attitude towards the Federal Government’s offer to negotiate with the P&ID over the judgment.
Punch’s enquiry was sent to the P&ID’s lead counsel, Ian Mill, a Queen’s Counsel, of the UK-based Blackstone Chambers, on Friday.
The PUNCH’s mail was replied on behalf of Mill on Sunday, by an Assistant Director at the UK-based public relations firm, iNHouse Communications, advising Nigeria to accept the reality of the ruling of the arbitration panel and the UK court’s judgment and desist from its “campaign of baseless slander.”
The reply quoting, “a spokesperson for the P&ID,” read in part, “If the Nigerian government is serious about a willingness to negotiate, then it must do so in good faith.
“This means that the Buhari administration must acknowledge the reality of the rulings of the independent tribunal and the English Commercial Court, desist from its campaign of baseless slander and sham investigations against the P&ID and its founders, and instead appoint an authorised party to enter into real negotiations.”
We’ll proceed with plan to seize Nigeria’s assets –UK firm
The firm, however, added that it would continue to seek to identify and seize Nigeria’s assets while it determined the country’s seriousness about negotiation over the judgment in a matter of days.
It stated, “The coming days will tell if the Nigerian government is serious, or if this is simply another delaying tactic.
“In the meantime, the P&ID will continue its efforts to identify and seize Nigerian assets to satisfy the debt.”
We’re ready to negotiate with P&ID –Minister
However, the Federal Government had, through its officials, directed the Economic and Financial Crimes Commission, the National Intelligence Agency and the police to launch a wide-ranging investigations into the activities of the P&ID, their promoters, and the contract leading to the UK judgment among others.
On August 29, 2019, the minister of information and culture, Lai Mohammed, who spoke on Good Morning Nigeria, a live breakfast programme of the Nigerian Television Authority, said government was willing to meet with the P&ID to come up with a “reasonable” agreement.
Mohammed said, “We are even willing to sit down with the P&ID and negotiate. We are ready to take this matter to the highest level — legal, diplomatic and otherwise — because we think it is just unfair and unconscionable. You don’t inflict this kind of injury on a country and its people for your selfish reasons.
“The government is doing everything possible to get self-execution and to set aside this award. But at the end of the day, we need to sit down with the P&ID and arrive at something that we think is reasonable for all the parties.”
P&ID rejected assets, demanded cash, says report
Meanwhile, the Federal Government had in 2018 negotiated and offered to pay $250 million in the form of settlement to the P&ID to put to rest a controversial judgment that was slammed on Nigeria by a United Kingdom court that the firm should seize $9.6 billion in Nigerian assets.
This was contained in a document sighted by one of our correspondents.
The document titled, ‘Summary of facts on the P&ID,’ and dated August 29, 2019, which one our correspondents sighted on Sunday, showed that some Federal Government officials and its counsel, Chief Bolaji Ayorinde (SAN), had on May 16, 2017, met with the representatives of the firm and its counsel to negotiate the award.
The government team reportedly succeeded in negotiating the award from $8.4 billion to $600 million.
The terms of the initial agreement were that $100 million would be paid to the P&ID within 14 days after execution of the Stay of Enforcement of Award Agreement and that the outstanding $500 million would be paid through an asset that would be determined by the Ministry of Petroleum Resources.
According to the document, the P&ID forwarded a draft Stay of Enforcement Agreement through Ayorinde which in turn was forwarded to the ministry for necessary action.
However, by the time the ministry forwarded its comments to the P&ID, they were rejected on the grounds that what was agreed on for execution was a Draft Stay of Enforcement Agreement and not a Settlement Agreement as proposed by the Federal Government.
The document indicated that at another negotiation meeting held on July 13, 2018, with the firm’s counsel, Messrs Kobre & Kim LLP, the P&ID’s position was that litigation efforts to enforce the award in the US had been subjected to third party funding and that the settlement proposals by the Nigerian government would then need to be significantly higher than the settlement sum proposed in May 2017 by the Federal Government at the settlement meetings in London.
It read, “Further, the P&ID was of the opinion that the settlement offer by the Nigerian government in May 2017 at the settlement meetings in London was not mutually agreed by the parties and did not represent the collective intention of the parties. The P&ID was no longer looking to accept marginal field assets as part of the settlement but would rather expect monetary payments.
“The P&ID will be looking for a sum in excess of $2 billion in the settlement of the claim and may consider a stand-still agreement backed by a part payment and specific arrangements on payment of the balance.
“Nigeria is favourably disposed to a settlement of the dispute at a reasonable sum and has secured the approval of the government thereon.
“The Nigerian government would not consider a stand-still agreement, but would rather favour payment of a reasonable sum in full and final satisfaction of the claim.
“The government would only consider monetary payments to the P&ID, and in this regard offered a sum of $250 million which was rejected by the P&ID. The offer of $250 million made by the Nigerian government was rejected by the P&ID.
“After the breakdown of negotiations, the P&ID continued with the enforcement action and simultaneously filed an action in a United Kingdom court for the recognition and enforcement of the arbitral award in the UK.”
The actions taken by the Federal Government in respect of the recognition and enforcement in the US included that it challenged the District Court’s jurisdiction in the US, urging it to dismiss the P&ID’s petition.
The government’s position on the US proceedings was to resist the enforcement of the award on the basis that Nigeria, as a sovereign state, had an absolute right to obtain an authoritative determination of its sovereign immunity.
The FGN demanded that the jurisdictional issue must be conclusively resolved before Nigeria might be required to litigate the merits of the P&ID’s petition.
But the P&ID challenged Nigeria’s position, urging the District Court to direct Nigeria to file both its jurisdiction and merit defence as a consolidated defence so that the proceedings might be disposed by the District Court summarily.
Although the UK Commercial Court had on August 16, 2019, recognised the Arbitral Award, the Federal Government’s position was that the enforcement of the award could not take place immediately because the judge in the UK court ordered that enforcement could only begin after a further hearing on the matter and a date had yet to be fixed at the time.
The document added, “It must be placed on record that the Federal Government strongly views with serious concerns, the underhanded manner by which the negotiation, signing and formation of the contract was carried out by some vested interests in the past administration which it believes was in connivance with their local and international conspirators all in a bid to inflict grave economic adversity on the Federal Republic of Nigeria and the good people of Nigeria.
“It is premised on the above and in an attempt to unravel the circumstances surrounding the entire transaction that the Attorney-General of the Federation, with the approval of Mr President of June 26, 2019, requested the Economic and Financial Crimes Commission, the National Intelligence Agency and the Inspector-General of Police to conduct a thorough investigation into the company, the circumstances surrounding the agreement and the subsequent event which includes commencing a full-scale criminal investigation.
“The FGN counsel (Curtis) has been directed to seek for a Stay of Execution of judgment while at the same time appeal against the decision of the English court.”
The controversial contract
The contract leading to the August 16, 2019, judgment of the UK court was about a 20-year Gas Supply and Processing Agreement entered in 2010 between the Nigerian government, through the Ministry of Petroleum Resources, and the P & ID.
It was in respect of an accelerated gas development project in Nigeria’s Oil Mining Leases 67 and 123.
A dispute later arose on the contract between the two parties, with the P&ID claiming that Nigeria failed to make wet gas available as stipulated in the GSPA.
The P&ID approached an arbitration panel in London for resolution, claiming to have incurred about $40 million preliminary expenses on the project.
But the Nigerian government claimed the P&ID never began the construction of the project facility as agreed.
On January 31, 2017, the arbitration panel, in a majority decision of two to one, held that Nigeria was in breach of the GSPA, and rendered its final award against Nigeria in the sum of $6.597 billion together with pre-award interest at the rate of seven per cent per annum effective from March 13, 2013, and post-award interest at the same rate till date of payment.
Following the P&ID’s application, a British court, in its judgment of August 16, 2019, gave force to the arbitral award giving the company a go-ahead to seize Nigerian assets worth a total of $9.6 billion.
