Contrary to the claim of the attorney general of the
federation, Abubakar Malami, that the Economic and Financial Crimes Commission
(EFCC) is partly to blame for Nigeria’s failure to originally secure a stay of
execution of the award of $8.9 billion (about N3.2 trillion) in favour of
P&ID, details of Friday’s judgement by a British Commercial Court revealed
that the EFCC’s investigation was instrumental to the favourable judgement
obtained by the country.
The Commercial Court granted Nigeria’s appeal for a stay of
execution of the award of $8.9 billion (about N3.2 trillion) in favour of
P&ID, a controversial British firm that secured a gas contract in Nigeria.
On Friday, the Royal Courts of Justice Strand, London, WC2A
2LL presided over by Justice Ross Cranston said following a review of written
submissions by the Nigerian government after the arbitral award, which
contained “new evidence” concerning the matter in dispute, the court decided to
grant “Nigeria’s applications for an extension of time and relief from
sanctions.”
The latest ruling is, however, a temporary reprieve for
Nigeria, as it merely provides an opportunity for the court to review the new
evidence of a miscarriage of justice claimed by the Nigerian government and
does not amount to a repeal of the award to Process & Industrial
Development Limited (P&ID).
The UK Business & Property Courts (the Commercial
Court), presided by Justice Butcher, had approved that P&ID should enforce
a March 20, 2013 award against Nigeria by a District Circuit Court in
Washington DC.
Malami’s Claim to
Buhari
In a letter to President Muhammadu Buhari, Mr Malami, whose
complaint led to the removal of Ibrahim Magu as acting EFCC chairman, accused
the suspended anti-graft chief of failing to act timeously on a presidential
directive by the Ministry of Justice to commence investigation into the matter.
Mr Malami told President Buhari that in two letters dated
June 26 and June 28, 2018 detailing “facts and documents for the investigation”
the EFCC was directed to commence investigation into the matter but that the
anti-graft commission “did not accord this presidential directive any serious
attention until a year after around July/August 2019 when the scale had already
tilted dangerously against Nigeria.”
“In view of this delay, the Police were requested to also
conduct an independent investigation into the P&ID matter. In the same
vein, in December 2019, there was request to the Ag. Chairman of the EFCC to
forward copies of all charges, proof of evidence, and judgments in relation to
all cases filed by the EFCC against P&ID and their associates, copies of
warrants of arrest, copies of other documents in relation to the ongoing
investigations. The above documents were required by the Police to enable it to
interface with Interpol on this matter.
“The Acting Chairman of EFCC did not respond to my request.
The above is just one out of several correspondences which institution has had
cause to send to the EFCC and which were neither acknowledged nor replied.
Examples of cases where the Acting Chairman either refused to respond to
requests from the Office of the Attorney General of the Federation and the
Solicitor General of the Federation are attached as (“Annex 3’’).
“In total, it is estimated that the Federal Government of
Nigeria lose or would have lost Forty-Seven Billion, thirty-six million, five
hundred and twenty eighty thousand, two hundred and nine Naira (N47,
036,528,209.00). In dollars, the estimated amount would be approximately,
($85,008,917.43) Eighty-five million, eight thousand, and nine hundred and
seventeen pence and in pounds, it would be Seventy-four thousand Pounds
(#74,000.00).
“These losses would be directly linked to the lack of
response by the Acting Chairman or lack of coordination and the Acting
Chairman’s recalcitrant attitude to work,” Mr Malami wrote.
Judgement counters
Malami
However, contrary to Mr Malami’s claim, the judgement of the
court obtained on Friday has revealed that the EFCC under Mr Magu in fact
commenced investigation into the matter prior to the presidential directives
and also acted swiftly upon receiving the directive.
The judgement revealed that EFCC
investigations were instrumental in unearthing the pieces of evidence that
convinced the court to make Friday’s judgement that was favourable to Nigeria.
Having received the presidential
directive from the Ministry of Justice, the judgement revealed that the EFCC
almost immediately swung into action, invited the legal directors of the
Ministry of Justice and the Nigerian National Petroleum Corporation (NNPC) for
interrogation into what it described as “a conspiracy, abuse of office and
misuse of public funds.”
“From late February 2016 until 2
March 2016 these officials were interviewed and they provided the EFCC with
documents relating to the GSPA and the arbitration.”
The judgement further showed that
the EFCC submitted an interim report on the matter on 16 June 2016, which noted
that the process of awarding the GSPA “was significantly hinged on the report
of the technical committee of the [Ministry] [and] had the certification and
recommendation of the legal unit of the Ministry and that the agreement was
signed by the Legal Adviser, Grace Taiga, as a witness to the MOU and the
[GSPA]”.
The interim report also offered
conclusions and recommendations.
Upon the receipt of the
presidential directive, the judgement showed that the EFCC spoke to several sources
and profiled about 30 possible suspects.
Less than two months after the
commission received the directive from the Ministry of Justice (August 2018),
the EFCC sent a request for information to various government agencies and in
January 2019, it contacted the Ministry of Lands at Cross River State and the
Federal Inland Revenue Service.
After the August 16, 2019
judgement given by Mr Butcher, which granted P&ID the right to enforce the
final award judgement, Mr Malami told the British court that the judgement was
because the EFCC has “limited remit to financial and related matters.”
But the EFCC was not deterred as
it soon obtained critical pieces of evidence that has now proven to be helpful
to Friday’s judgement.
“On 28 August 2019 the Federal
Inland Revenue Service informed the EFCC that P&ID had not opened a tax
file. Early the following month, on 3 September 2019, the Special Control Unit
against Money Laundering reported that P&ID Nigeria had failed to register
its activities with it.
“In a letter of 4 September, 2019
to the EFCC, the Director of Lands of Cross River State wrote that a letter of
allocation was only issued to applicants on payment of all the land charges and
fees within the 120 days specified. P&ID could not claim that the land had
been allocated to it in 2010, since there was no proof of payment and
no-issuance of a Certificate of Occupancy,” the judgement revealed.
In the EFCC-led criminal
proceeding against P&ID, Ms Taiga, Mr Cahill and Mr Kuchazi, P&aID and
P&ID Nigeria pleaded guilty to 10 and 11 counts charges respectively of
“conspiracy to defraud Nigeria, money laundering, tax evasion and trading
without proper authorisations.”
“The convictions were on evidence
given by an officer of the EFCC,” the judgement stated.
According to the judgement, the
EFCC did not stop there. It continued its investigations of persons of interest
in the matter and on November 15, 2019 accessed some bank records showing that
some former official of the Ministry of Justice, Taofiq Tijani, “received
bribes from P&ID in return for overlooking shortcomings in its bid.”
The judgement further stated
several revelations about the case that was uncovered by EFCC investigations.
“As explained earlier in the
judgment, in a letter to the EFCC on 20 September 2019 General Danjuma’s
company, Tita-Kuru, stated, in effect, that P&ID had stolen its plans for a
gas stripping plant which it then used to obtain the GSPA.
“Mr Shasore, who conducted the
arbitration for Nigeria at the jurisdiction and liability stages, was
interviewed on 24 December 2019. He told the EFCC that he made personal gifts
of US$100,000 each to Ms Adelore (the senior lawyer at the Ministry) and Mr
Oguine (legal director at the NNPC).
“In an interview on 6 and 7, May
2020 Ms Adelore accepted that she received an unsolicited payment of US$100,000
in cash from Mr Shasore, which she had a colleague collect from Mr Shasore’s
office. She has told the EFCC that she felt Mr Shasore was working against
Nigeria’s interests in the arbitration.”
“During its inquiries, EFCC
obtained bank statements and Swift records of interbank payments in relation to
various accounts. Among the information obtained from September 2019, and the
date EFCC obtained it, is the following (described in greater detail later in
the judgment under “Payments/bribes”).
“Ms Taiga received two cash
transactions of US$10,400 and US$6,500 into her Access Bank account (but not
linked to P&ID) (information EFCC obtained on 27 September 2019). There
were payments in 2017 into her Zenith Bank account from Eastwise and ICIL
(information EFCC obtained on 2 October 2019). Her daughter received payments
from ICIL, Ireland, in March 2019 (information EFCC obtained from Citibank NA,
London, 2 March 2020).
“Dr Lukman opened a US Dollar
account at GT Bank on 16 January 2009, with an initial cash deposit of
US$10,000. Dr Lukman then deposited a further US$10,000 of cash into another GT
Bank account on 8 April 2009 (information EFCC obtained on 5 October 2019).
“Mr Tijani received two payments
from Lurgi totalling around £30,000 in April 2014 and April 2015 (information
EFCC obtained early November 2019).
“Dr Ibrahim, a member of the
technical committee reviewing the GSPA, opened a US dollar account on 28 April
2008 under the name of his company, Equatorial Petroleum Coastal & Process
Limited, with an initial cash deposit of US$10,000. There were further periodic
cash deposits totalling US$69,300 until 2015. On 28 October and 1 December 2008
there were also two cash deposits totalling NGN 4,000,000 (approximately
£8,500) into his personal account at Firstbank.
“In March this year Nigeria
applied to the US District Court for the Southern District of New York under 28
USC [United States Code] § 1782(a) to obtain discovery of bank accounts at ten
different banks. P&ID intervened in the course of the application. It
stated that it did not object to the order although its submission to Judge
Schofield was that the use of the information obtained should be limited to
criminal prosecutions in Nigeria.
“The US court made disclosure
orders on 7 May 2020. As a result of the application, Nigeria obtained
information, including payments to Ms Taiga’s daughter in 2009 and 2012,” the
judge said.
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