Former presidents Olusegun Obasanjo and Muhammadu Buhari are testifying before the International Chamber of Commerce (ICC), Paris, France, in connection with the $2.3 billion arbitration proceedings filed against Nigeria by Sunrise Power over an alleged breach of contract by the federal government.
Sources confirmed to newsmen yesterday that both leaders are in Paris in respect of the matter.
A presidential spokesman, Bayo Onanuga, had Saturday night denied a report that the Presidency forced some eminent Nigerians to testify in the arbitration proceeding taking place in Paris.
Onanuga, who did not deny the existence of the case, had said: “All the eminent Nigerians involved in Nigeria’s defence are doing so willingly and out of sheer patriotism and conviction. President Tinubu and the entire country are grateful to them.”
Obasanjo’s media aide, Kehinde Akinyemi, told Daily Trust on the telephone yesterday that his principal is currently in France.
He, however, said he was not privy to what took the former leader there.
“I can confirm to you that the former president is right now in France and that is the only thing I know,” he said in a telephone conversation yesterday.
Obasanjo had, in an interview with TheCable in 2023, said: “If a commission of inquiry is set up today to investigate the matter, I am ready to testify.”
Efforts to reach Malam Garba Shehu, the spokesperson to former President Buhari were not successful as his lines could not be reached through calls and texts, including WhatsApp messages.
However, other sources confirmed that Buhari travelled out of Nigeria, but could not say whether he is currently in France or another country.
How the case started
Sunrise, on October 10, 2017, started the arbitration against Nigeria at the ICC, Paris, seeking a $2.354 billion award for “breach of contract” in relation to a 2003 agreement to construct the 3,050 megawatt plant in Mambilla, Taraba State, on a “build, operate and transfer” basis valued at $6 billion.
A former Minister of Power, Works and Housing, Babatunde Fashola, in 2017, had described Sunrise Power as a middleman.
The minister had said the Buhari administration was directly contracting the Engineering, Procurement and Construction (EPC) contractor, Sinohydro Corporation Limited, a Chinese firm, currently handling the project.
After several negotiations, a former Minister of Power, Sale Mamman, had, in 2020, reportedly said the parties had reached an out-of-court settlement of $200 million.
The court battle took a new turn when Sunrise later filed a $400 million compensation claim at the ICC against the government for breaching the new agreement.
The company had said the sum was to serve as an out-of-court settlement which the government allegedly failed to honour as it had agreed to pay in 14 days after it was signed by a former Attorney-General of the Federation and Minister of Justice, Abubakar Malami and Sale Mamman for the government and the Chairman/CEO of Sunrise Power, Leno Adesanya.
The company’s legal representative, Femi Falana, then filed a lawsuit at the International Court of Arbitration on May 11, demanding $400 million as overall claims, including penalties.
According to Sunrise in its claim document, the amount was to be paid “within 14 days” of the execution of the terms of the agreement on January 21, 2020, along with a 10 per cent penalty if there is a default in the settlement terms.
The company had also said it was agreed in the pact signed that it would be restored as the local partner for the current $5.8 billion Mambilla power project.
A follow-up on this showed that the pact was revised and the local partner condition was removed. The federal government later requested a review of the negotiation, citing the COVID-19 pandemic effects on the Nigerian economy.
Obasanjo’s intervention
Obasanjo, in the interview he granted The Cable in 2023, challenged his former Minister of Power, Olu Agunloye, how he got the prerogative to award the contract to Sunrise in 2003.
“When I was president, no minister had the power to approve more than N25 million without express presidential consent. It was impossible for Agunloye to commit my government to a $6 billion project without my permission and I did not give him any permission.
“If a commission of inquiry is set up today to investigate the matter, I am ready to testify. I do not even need to testify because all the records are there. I never approved it.
“When he presented his memo to the federal executive council (on May 21, 2003), I was surprised because he had previously discussed it with me and I had told him to jettison the idea, that I had other ideas on how the power sector would be restructured and funded.
“I told him as much at the council meeting and directed him to step down the memo. I find it surprising that Agunloye is now claiming he acted on behalf of Nigeria. If I knew he issued such a letter to Sunrise, I would have sacked him as minister during my second term. He would not have spent a day longer in office”, the former president said.
Reacting to Obasanjo’s claims, Agunloye had said the government was not compelled to pay any amount to Sunrise under the build, operate and transfer (BOT) agreement.
He said the arrangement remained as it was to be fully funded by the newly registered company, whose declared assets were worth less than $2,000 at the time.
Ex-minister, Agunloye, declared wanted by EFFC
In December 2023, the Economic and Financial Crimes Commission (EFCC) declared Agunloye wanted over allegations of fraud to the tune of $6 billion in the Mambilla hydropower contract.
While the minister presented himself to the agency, the EFCC arraigned him before Donatus Okorowo in January 2024 where he pleaded not guilty to the charges read against him.
He was later remanded in Kuje Prison pending the perfection of his bail conditions.
Meanwhile, Buhari had also written to the Attorney-General of the Federation and Minister of Justice, Lateef Fagbemi, denying authorising the settlement agreement of 2020.
He had stated: “While I understood that my ministers of justice, power and water resources were approached by Sunrise and were engaging with various stakeholders that were involved in the project to resolve the issues blocking the project’s implementation, at no time did I specifically instruct them to enter into and conclude any settlement agreement with Sunrise Power and Transmission Company Limited.
“Indeed, when the proposed settlement agreement and addendum were presented to me for my consideration and approval on 20th April, 2020, I refused to approve the settlement deal because I was convinced that there was no basis for Sunrise’s claim.
“I hope the above clarifications will assist you in your defence of our country from these ‘invisible contractors who all too often quietly take Nigeria for many millions in out-of-court settlements’, as I stated in my recent statement regarding Nigeria’s victory in the P&ID saga”, the former president said.
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