Another Firm Set to Drag FG to International Arbitration over Alleged Breach of Due Process

Emmanuel Addeh in Abuja

Donnington Nigeria Ltd and its foreign partners have given notice to the federal government of their intention to drag the country into international arbitration over issues surrounding Cargo and Crude Oil Tracking and Notification (ACD/CTN) scheme.

Recall that the government had recently been engaged in a legal debacle that led to a Chinese firm seizing properties belonging to Nigeria abroad in pursuit of a court judgement, including presidential jets and real estate properties in Liverpool, United Kingdom.

In the current case, Gary Summers of Gray’s Inn, London-based solicitor to Donnington Nigeria Limited (DNL), Donnington International AG, Vortexra UK, and DP World UAE, has written to the Attorney-General and Minister of Justice, Chief Lateef Fagbemi (SAN) over what he described as “the recent publicised appointment of a new consultant by the federal government for the ACD/CTN scheme, which we believe disregards ongoing legal proceedings and raises serious issues of transparency and due process.”

The award, the firm argued, was made while Donnington and the  government are in court over the same matter.

Donnington and its international partner and specialists insist it has suffered substantial financial harm after some top officials in the former President Muhammadu Buhari administration allegedly used proxies to divert the CTN scheme to themselves.

It stated that this was despite a presidential executive order that had snapped on a greenlight to Donnington Ltd which said it went through a stringent procurement process in accordance with the Public Procurement Act 2007 with numerous government ministries.

According to the company, it was successfully endorsed by the Ministries, the Customs service and the Minister of Justice, to implement the scheme that would have generated billions of Naira for Nigeria.

This alleged abuse of office and breach of fiduciary position, it said, left the country bleeding because, according to a report, over $4.9 billion had been lost annually due to the inability of the scheme to be implemented as planned – because of the legal battle the CTN contract had elicited.
In suits FHC/ABJ/CS/1483/2022 and FHC/ABJ/CS/2351/2022 against the federal government and others, Donnington is seeking declaratory reliefs and an order of injunction to halt the alleged unlawful re-award of the ACD/CTN Scheme.

In pursuance of the successful procurement process and appointment, it stated that it had committed both financial and human resources to the realisation of the CTN scheme.

According to the Donnington solicitor with a “historical unfinished procurement process” awarding the ACD/CTN scheme to a new consultant, P-LYNE Nigeria Limited, despite subsisting court orders and cases, apart from not being standard practice is also null and void, and against the rule of law.

Donnington said the appointment of P-LYNE as the new consultant, raises “concerns about conflicts of interest, the lack of due diligence, due process, transparency, and the appointments not being in the best interests of the people of Nigeria”.

The company said in the letter to the AGF: “It has come to our attention that despite the ongoing high court case involving Donnington Nigeria Limited (DNL), the Petroleum Upstream department within the Federal Ministry of Petroleum Resources (FMoPR) has moved forward with approval for the FGN appointing P-LYNE Nigeria Ltd, a subsidiary of the Sahara Energy Group, as the consultant for the ACD/CTN scheme, in total disregard for the court order of the ongoing cases at the High Court referenced earlier in this document.”

Donnington further stated: “This decision, made in the absence of thorough due diligence and amidst legal actions, not only undermines the judicial process but also poses a significant risk to the integrity of the ACD/CTN scheme itself.

 “It is extremely concerning that this appointment was made in such a hurried way, disregarding the ongoing procurement procedure and the legal issues raised by Donnington Nigeria Limited and being heard within the High Court of Nigeria.”

“The award of the ACD/CTN contract to P-LYNE Nigeria Ltd, a company with clear ties to Sahara Energy Group—a major player in crude oil trading—raises significant concerns about conflicts of interest.

It argued that the it is like a case of putting a goat in charge of a warehouse full of yams.

“A company involved in crude oil trading nationally and internationally, should not be entrusted with the responsibility of tracking crude oil, as this could compromise the objectivity and effectiveness of the ACD/CTN scheme,”  it noted.

It said that it therefore should be concerning to the Nigerian people that awarding the ACD/CTN contract to an oil trading, shipping, and processing organisation may pose a risk of overlooking or failing to report discrepancies in crude oil transactions, especially if they are self-serving.

Donnington said it was concerned by the “speed and lack of transparency in the processes that led to the recent announcement of the appointment of P-LYNE Nig Ltd and P-Lyne Energy Ltd to execute a part of an already awarded contract which is being contested in the High Courts of Nigeria.

It stated that more worrisome to the company was the fact that the government awarded a payment of $21million (which is understood to be a mobilisation fee) to P-LYNE when its arrangement with the government and approved by the Ministry of Finance was at no cost to the federal government.

 “It was expected that Donnington Nigeria Limited would implement the International Cargo Tracking Scheme (ICTN), including crude oil exports in Nigeria for the contracted period on a ‘No cure, No Pay Basis’, with an agreed revenue sharing ratio accruable to the federal government.

The company advised the AGF in the letter that the $21 million being paid to the P-LYNE Nigeria Ltd when they are on a revenue sharing ratio, “is not in the favour of the Nigerian people.”

 Summers warned that the company was in the final process of filing the Request for Arbitration proceedings against the Nigeria in accordance with The Convention on the Settlement of Investment Disputes Between States and Nationals of Other States and Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings.

“The claims relate to breaches of the bilateral investment treaties (BITS), with its investors and partner, under the jurisdictions of the United Kingdom and Switzerland, to which the FRN is a party,”  he said.

He also informed Fagbemi that the company and its technical partners had appointed a highly reputed international specialist investigatory team which continue a review into the  contract award of the cargo and crude oil tracking note scheme.

“The investigatory team is being led by Tarique Ghaffur, a former Assistant Commissioner of London’s Metropolitan Police, head of Scotland Yard’s Specialist Crime Directorate.

“As the head of an international security consultancy, together with his team of public corruption and economic crime experts, which includes investigatory support by Kroll Inc. based in the United Kingdom, Summer noted “the intent is to further widen the pre-investigation to cover the new appointment of P-LYNE Nigeria Ltd..”

Summers urged the AGF to intervene in the matter and promptly act so as to safeguard “the integrity of the ACD/CTN scheme and protect the interests of the Nigerian people.”