US Court Grants Nigeria’s Application to Secure Documents against P&ID

Tobi Soniyi

A United States District Court for the Southern District of New York has granted Nigeria’s application to request from 10 US banks documents that may incriminate officials of the Process and Industrial Developments Limited (P&ID). In the ex-parte application filled by the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN), Nigeria seeks subpoenas of 10 different banks for “all documents concerning any transaction,” dating back 11 years, involving 60 individuals and corporate entities to enable it substantiate allegations of crimes and financial impropriety against The Nigerian application was brought pursuant to 28 U.S.C. § 1782 (Section 1782). Section 1782, a U.S. law, allows those with an interest in a case to obtain required information. A section 1782 request is a request to a federal court in the United States. It asks the court to help a foreign court, or a participant in a foreign legal case, to obtain information, which can be used in a legal case in another country.

The process of obtaining information is known as “discovery.” The foreign legal case can be either on-going or under preparation. The discovery can be in the form of testimony, documents, or physical evidence.

However, P&ID filed a response to the application as an interested person. It did not oppose Nigeria’s application but urged that, if the court grants the application, Nigeria be required to promptly provide P&ID’s counsel with copies of all documents produced, and with the opportunity to attend all depositions conducted, pursuant to the subpoenas.

It described Nigeria’s application as “a desperate attempt to substantiate her spurious allegations of a fraud supposedly ‘carried out’ by P&ID.” The company also prayed that “if the court grants Nigeria’s application, the court should ensure P&ID’s access to any resulting discovery from the third-party subpoena recipients, consistent with Federal Rule of Civil Procedure 45 and this court’s precedent. If Nigeria serves the subpoenas, all discovery should be shared with P&ID. P&ID does not expect Nigeria’s discovery efforts to turn up evidence of fraud by P&ID – because there was no fraud – but P&ID wants to make sure that Nigeria does not mischaracterise any evidence obtained by, for example, selectively disclosing bank transfers in other court proceedings to try to make them appear suspicious.”

Reacting to the court’s decision, P&ID said, “We are pleased with the U.S. court’s decision to grant P&ID discovery as part of Nigeria’s 1782 application. Nigeria’s desperate plea to keep the results of its fishing expedition hidden was rejected by the U.S. court. As a result, AG Malami will not be able to selectively and misleadingly use this discovery in the English courts as part of its baseless fraud case to avoid paying P&ID.”

It also said that by the ruling, the court had rejected Nigeria’s attempt to keep P&ID in the dark about the discovery it sought.
Despite Nigeria’s submissions to the contrary, the court ordered Nigeria to give P&ID access to any documents it received and to any depositions conducted.

The court noted, “P&ID has an undisputed interest in the subpoenaed information as applicant states that its investigations and criminal proceedings relate to P&ID, and the requested material relates to P&ID as well.”

Nigeria was also ordered to meet and confer with the “interested parties as is necessary.”

Nigeria and P&ID are locked in legal battles over a gas supply and process agreement entered with the Irish firm. A London commercial court had entered a $9.6 billion award against Nigeria.

Nigeria is making frantic efforts to set aside the judgement and had launched criminal investigations against the company and its officials.