As Court Halts EFCC’s Prosecution of Businessman over Mambilla Power Project
Last week’s order of a Federal High Court shielding the promoter of Sunrise Power and Transmission Company Limited, Leno Adesanya, from prosecution by the Economic and Financial Crimes Commission will correct the wrong impression by the agency’s crackdown which portrayed Nigeria as a territory where international commercial transactions are unsafe and where municipal laws and agencies can be used against investors in case of disputes, writes Festus Akanbi
There was a twist to the long-drawn battle over the controversial $6 billion Mambilla Hydroelectric Power Project last week when a Federal High Court sitting in Abuja restrained the Economic and Financial Crimes Commission (EFCC) from prosecuting the promoter of Sunrise Power and Transmission Company Limited, Mr. Leno Adesanya regarding the power project fraud.
The reprieve from the court also included an order to the anti-graft body to remove Adesanya’s name and photograph from the EFCC’s wanted list in newspaper publications.
The judge, Justice Inyang Ekwo equally ordered that the anti-graft agency should remove all other negative contents concerning or about Adesanya in connection with any criminal allegation associated with the contract.
He stated that given the fact that since the Ministry of Power had contested the claims of the plaintiffs and had counterclaimed against them at the International Chamber of Commerce Court of Arbitration, the sanctity of the arbitral proceedings must be respected and protected.
The judge stressed that the Ministry of Power must not be seen as a territory where international commercial transactions are unsafe and where municipal laws and agencies can be used against investors in case of disputes.
The suit was filed against the EFCC, the ministry, the Federal Government of Nigeria, and the Attorney General of the Federation (AGF).
The EFCC had declared Adesanya wanted for “an alleged case of conspiracy and corrupt offer to public officers” about the Mambilla project.
However, Adesanya and Sunrise Power and Transmission Company Limited, sued the defendants to challenge the EFCC’s action.
| THISDAY gathered, however, that last week’s order is pending the determination of the contractual dispute between the company and the Federal Ministry of Power and Steel.The judge, however, refused to grant a prayer seeking compensation in the sum of N1 billion against the defendants, pointing out that the court, at this moment, is concerned with the protection of the sanctity of the arbitral proceeding of the International Chamber of Commerce Court of Arbitration based on the UN Conventions on international dispute resolutions.Stressing the need to go in the direction of the UN Convention on dispute resolution, the judge said, “Nigeria (the 2nd defendant in this case) is not just a signatory but has domesticated under AMA 2023.“This judgment is to ensure that parties are compelled to do so. This is the order of this court,” he saidThe judgment was delivered on a suit marked: FHC/ABJ/CS/267/2024 filed by the plaintiffs’ lawyer, M.S. Diri, a Senior Advocate of Nigeria.Diri sought a perpetual injunction restraining the EFCC from further investigating, inviting, or publishing Adesanya’s name as a wanted person on its website: https://www.efcc.gov.ng and all other social media handles and notice boards concerning the project. The ControversyThe senior lawyer prayed the court to determine the propriety of the anti-graft commission’s powers to investigate the commercial transaction between his clients, the federal government, and the Ministry of Power, even when the case was already pending at the International Chamber of Commerce Court of Arbitration in Paris. He argued that Adesanya, seeking to ensure sustainable power in Nigeria, proposed constructing the Mambilla Hydroelectric Power Project through Sunrise Ltd as the special purpose vehicle to drive the project.He said Sunrise and its Chinese partners, North China Power and China Hydroelectric Companies, held various meetings in China with three Power Ministers regarding the Zungeru and Mambilla projects.He submitted that in 2005 and 2006, former President Olusegun Obasanjo approved financial negotiations for the project, but to date, no funds had been disbursed by the federal government to the plaintiffs regarding the contract.He said to amicably resolve the issues concerning the project, the company wrote letters to the Ministry of Power, leading to meetings between his clients and the executive branch of government.“Following these, the federal government agreed to pay the 2nd plaintiff the sum of $200 million within 14 days of executing the Terms of Agreement, and failure to do so would trigger the commencement of 10% compound interest per annum.“As a result of the Terms of Settlement, the arbitration in Case No. 23211 was withdrawn,” he said.He added that by a letter dated April 22, 2020, rather than honouring the agreement, the federal government wrote through the AGF seeking a review of the terms.“Consequently, the 2nd plaintiff instituted fresh arbitral proceedings: Sunrise Power and Transmission Company Limited v. Federal Government of Nigeria – ICC Case No: 26260/SPN/AB/CPB (Exhibits D and E),” the lawyer said.He stated that the arbitral proceeding was scheduled for a virtual hearing on 22 March.D Diri said despite the pending case, the federal government and its security agencies, including the EFCC, sought to criminalise and scandalise the Mambilla Project, aiming to evade their legal contractual obligations. However, the EFCC’s lawyer, Attah Ocholi, argued that evidence of criminal activity was established against the plaintiffs during the investigation, leading to charges being framed in a High Court. Delivering the judgment, Justice Ekwo held that since the Ministry of Power had contested the claims of the plaintiffs and had counterclaimed against them at the International Chamber of Commerce Court of Arbitration, the sanctity of the arbitral proceedings must be respected and protected. He stressed that the Ministry of Power must not be seen as a territory where international commercial transactions are unsafe and where municipal laws and agencies can be used against investors in case of disputes. Justice Ekwo observed that Sunrise Limited had instituted fresh arbitral proceedings against the Federal Government of Nigeria, which are ongoing. Restraining EFCCThe judge further held that there is no justification for EFCC’s publication of Adesanya’s name and photograph as a “wanted person” on its website. Ekwo subsequently declared that the commission was not legally entitled to investigate, resolve, or prosecute the contractual dispute between Sunrise Ltd and the Ministry of Power and the federal government, pending before the International Chamber of Commerce Court of Arbitration in Paris, under ICC Case Reference No. 26260/SPN/AB/CPB. Need for Quick ResolutionExperts who weighed in on the legal tussle over the project said a quick resolution of all the outstanding issues on the project will not only raise the hope of a possible relief in a sector that has been consistently fingered for the setback in the economy but will also boost the confidence of foreign investors. The Mambilla power station which is located in Kakara village, in Taraba State, close to the border with Cameroon, sits across the Donga River and consists of four dams and two underground powerhouses. Construction of this power station is expected to generate 50,000 temporary and permanent jobs. The power generated will be sold to the Transmission Company of Nigeria, which will transmit it to two locations, where it will be integrated into the Nigerian electricity grid; one 330kV high voltage transmission line will connect to Jalingo and two to Makurdi. The entire new planned high-voltage transmission system measures over 700 kilometres (435 mi).However, analysts lamented a situation where a commercial dispute is being criminalised as the EFCC is allegedly unleashed on the company and its staff. This development, according to watchers of the unfolding drama, could make nonsense of the current drive for foreign investment by the current administration.Adesanya had alleged that the federal government decided to criminalise the power deal because there was no justification or defence for the unilateral cancellation of the deal.Sunrise Power and Transmission Company Limited claimed it was awarded a $6 billion build, operate, and transfer (BOT) contract in May 2003 by the Obasanjo administration but stated that the federal government at the time, rejected the agreement. He alleged the federal government’s disregard for the agreement when, on May 28, 2007, the Federal Ministry of Power signed a $1.46 billion EPC contract for the first phase of the Civil Works project with China Ghezouba Group Company (CGGC) and CGC (now called CGCOC), excluding Sunrise Power from the deal. |
Many legal luminaries privy to the matter had advised the federal government to settle amicably with Sunrise Power Transmission on the Mambilla hydro dispute. They warned that Nigeria does not have a good case at the arbitration and would face colossal damage which is more detrimental to the current seizure made by some Chinese firms about similar cases.
