Nigeria government in last-ditch attempt to overturn £8 billion compensation payout

Lawyers fighting to secure £8 billion in compensation from the Nigerian government have been subjected to 'interference,' the High Court in London heard on Friday. Five years ago Process and Industrial Developments Ltd (P&ID) won the award after the illegal cancellation of a gas processing contract. It was one of the largest claims ever won against the government of Nigeria, which is mired in allegations of corruption and nepotism.

In what many see as a last ditch attempt to reverse the decision, the Nigerian government is appealing against the ruling.

A series of 'regrettable' comments have been made by Nigerian officials about judges who decided the case in favour of P&ID.

At the High Court on Friday Mr Justice Robin Knowles attempted to set out a timetable for an eight week trial in January.

Mark Howard, KC, representing the government of Nigeria, said solicitors from both sides should be sent to Abuja, the capital of Nigeria, to supervise two witnesses who are giving evidence remotely.

He said: ‘There are security concerns in Nigeria which are well known.

'It is a comparatively dangerous place, but if one is going to a five star hotel then to the aberration centre, it is something you’re able to do.

‘P&ID have said it’s dangerous to send their solicitor. With respect we are prepared to send solicitors, so we do not see why they cannot send theirs.'

Lord David Wolfson of Tredegar, KC, representing P&ID, responded: ‘Our concerns are lawyers in this case have already been subject to interference. It’s not a question of whether Nigeria is safe generally.

‘We are on the other side to the government and we are concerned given the history of this case about people going out to Nigeria.’

Mr Howard requested Nigerian government officials be allowed to watch proceedings from Nigeria.

Lord Wolfson said: ‘There have been some statements put out by the Nigerian government about judges in previous cases which have been regrettable, the Nigerian government runs its own website where they provide commentary about this case.

‘We don’t want it to turn into a bit of a circus in Nigeria beyond the court’s control.

‘If it is the Attorney General who wants to attend, he has come to London before and it’s not clear why he couldn’t pitch up.'

Abubakar Malami, the Attorney General directing the government’s approach to the case, is the son-in-law of the president and the subject of allegations of corruption and improper behaviour.

Mr Howard said names of those wishing to attend would be given seven days in advance and they were not seeking blanket permission for anyone in Nigeria.

The parties disputed whether the eight week time limit which had been set was to include the week’s break near the end of the trial for the preparation of closing statements.

Mr Howard argued the time estimate did not include the week’s break.

He said: ‘It has been suggested we are trying to extend the trial and taking excessive time for cross examination- neither point is correct.

‘In terms of how this should be scheduled- our position is the 32 days should be used.

‘We are concerned P&ID is trying to impede the federal republic of Nigeria from properly putting this case.

‘This is a high value case even by the standards of this court and it has issues that go to the heart of how arbitration is conducted and to the proceedings of this court.

‘There are also concerns about witnesses heath which will mean additional breaks will be needed.’

‘I have no desire to extend the process any longer than is necessary.’

Lord Wolfson said: ‘When we talk about trial length, that includes the break if there is going to be a break. My learned friend says his timetable would be eight weeks, but it is actually nine or 10 weeks with a gap.

‘It is extremely rare for any witness in this court to be cross examined for more than a full week.

‘My Lord needs to look at this in the round and take a view on how long, really, cross examination needs to take.

‘We are concerned about my Lord being led down highways and byways- they are saying you were doing something wrong here so there must have been something wrong over here.

‘We submit it is excessive and a timetable much closer to ours would be more appropriate.

Mr Howard responded: ‘I have never come across a situation where you say you have 32 days of evidence and anyone says that includes time the judge is free, not sitting and not reading the documents.’

Mr Justice Knowles said the eight week’s would include the week’s break and a total of 14 days would be given for the cross-examination of witnesses, not the 17 days Mr Howard had requested.

Mr Howard argued the trial must hear from experts in Nigerian law.

He said: ‘The only excuse put forward for the payment is P&ID try to say is it is all allowed on the basis of customary giving and humanitarian purpose.

‘Your Lordship will have to assess that fact – this does not fall within customary gifts and gifts for bribery are never allowed.

‘This idea of customary gifts does not have an equivalent in English law and it is only right we hear from Nigerian experts.’

Lord Wolfson said: ‘The central question is not if something is lawful or not as a matter of Nigerian law, the central question is whether there was dishonesty.

‘Nigerian law is not the test of that.’

Mr Justice Knowles said: ‘I do think it is appropriate in the present case to involve Nigerian law experts.

‘In this case it is important as a matter of respect for the legal system that the court hears closely from available sources of Nigerian law.’

Mr Howard said he was puzzled why a chronology document had proved contentious, adding that it was not a long document.

He said: ‘I was able to read it whilst watching the football last night and it wasn’t enormously taxing’.

Lord Wolfson said: ‘On the chronology there is a number of problems- these has been no attempt whatsoever to produce a neutral document.

‘They are putting two and two together, sometimes making four, sometimes making five and sometimes making 132.’

Mr Justice Knowles said it was disappointing the two sides were so far apart on chronology and directed a junior barrister from each to meet to find an agreement.

Lord Wolfson told the judge his side’s opening statement may need to be 400 pages long.

Mr Justice Knowles replied: ‘That is the sort of length that I find unhelpful, I would rather be in command of 250 pages than be stretched on 400.’

He set a page limit of 250 pages for the Nigerian government and 300 for P&ID, because the government’s side has also submitted a statement of facts.

The parties agreed in principle that a document showing payments between parties was factually accurate in that it represented genuine payments made.

The Nigerian government lost a $1.7 billion claim against JP Morgan earlier this year where they claimed the bank was negligent by transferring $1.1 billion to Malabu in a 2011 oilfield deal.

Ibrahim Magu, the former head of Nigeria’s Economic and Financial Crimes Commission, stated that the UK court and judge should be investigated for previous judgements against Nigeria.

Buhari’s technical advisor on the media called the British legal statement ‘tainted’ and called for Nigeria to ‘stand up to the system’.

Obadiah Mailafia, a former presidential candidate and deputy governor of the Central Bank suggested in 2019 that the original award to P&ID was to impose a ‘punitive’ judgement on Nigeria.

The eight week trial will begin on 16 January.

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TIMELINE OF DISPUTE

• January 2010: Nigerian Ministry of Petroleum Resources signed a contract for the construction and operation of a new gas processing facility
• August 2012: P&ID initiated arbitration alleging that Nigeria had repudiated the contract and the project had foundered due to Nigeria’s failure to perform its side of the deal
• July 2015: The arbitration came to public attention, following a change of government in Nigeria
• January 2017: Arbitration tribunal issues final award of $6.6bn and attaches a pre- and post-judgment interest rate of 7 per cent
• January 2018: Nigeria requests fraud investigation by the Economic and Financial Crimes Commission into the P&ID deal
• March 2018: P&ID applies to the English High Court to enforce the final award and begins a parallel process in the US
• August 2019: The UK court declared that P&ID could take over assets from Nigeria totalling $9.6 billion for the country’s breach of the deal between them
• September 2019: English High Court allows P&ID to enforce award but grants Nigeria permission to appeal the award and said the company could not begin seizing state assets
• January 2020: Nigeria requests a hearing to present what it says is evidence of fraud
• September 2020: A high court judge permitted Nigeria an extension of time to challenge the award after concluding there was evidence the contract was procured by bribery and that arbitration proceedings were tainted
• August 2022: Nigerian government levels fresh claims of fraud against P&ID, indicating they will seek to prove to the court that P&ID did not make full disclosure to the court in earlier stages of the case
• December 2022: Pre Trial Review hearing takes place
• January 2023: Expected start of trial for Nigerian government seeking to set aside arbitration award

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