$9.6b judgment: UK court spots $700,000 bribes in P&ID contract


A United Kingdom Commercial Court said on Friday there was evidence of $700,000 (N301 million) bribe in the purported Gas Supply and Processing Agreement between the Federal Government and the Irish firm, Process and Industrial Developments (P & ID).

The court granted the federal government more time to appeal against the $9.6 billion arbitral award delivered in favour of P&ID over the controversial agreement.


In granting Nigeria’s prayer, Justice Ross Cranston of the Business and Property Courts of England and Wales declared: “Nigeria’s case in brief is that it has established a prima facie case of fraud against P&ID, which justifies the extension of time and will give it the opportunity to establish at trial its full ramifications for the arbitration.”

Nigeria had requested an extension of the time to appeal against the award after missing the initial 28 days deadline.

The Presidency on Friday hailed the ruling as right and just while Attorney-General of the Federation and Minister of Justice, Abubakar Malami (SAN), called it a victory against “vulture-fund-backed P&ID.”

The Irish firm had sought the amount as compensation for a project it claimed it invested about $40 million in.

The agreement was negotiated between 2010 and 2012.

Justice Ross Cranston also took notice of the fact that Malami and the Economic and Financial Crimes Commission (EFCC) did an excellent job in investigating P&ID.

The minister had criticised the suspended Acting Chairman of the agency, Mr. Ibrahim Magu, for alleged poor handling of the probe of P&ID, and it was one of the reasons Magu was suspended and subsequently investigated.

In the judgment,  Sir Ross Cranston identified those involved in the bribery scandal as a former minister, some top officials of the Ministry of Petroleum Resources, a Senior Advocate of Nigeria, a legal director with the Nigeria National Petroleum Corporation (NNPC) and two members of the Technical Committee which recommended the agreement with P$ID.

Although the names of Nigerians linked with the bribe scandal were listed in the judgment, some of them are still standing trial.

A former top official of NNPC admitted receipt of $100,000 for his expenses while a female director confirmed a favour of $100,000.

Others include a member of the Technical Committee (periodic cash deposits totaling US$69,300 until 2015); a former female director (US$10,400, US$6,500 and N4m); a former female Legal Adviser ($21,000); another member of the Technical Committee (£30,000, N3.440m (approximately £15,310) N4, 350m and N4m (approximately £13,375).

The judge said: “There was the spike in cash withdrawals from ICIL’s bank account around the time the GSPA was signed in 2010, totaling US$770,000 and NGN 15,000,000 (approximately £122,000).

“Mr. Nolan’s explanation for this in his statement did not bear scrutiny; there was expert evidence that quite apart from money-lending considerations, the oil and gas sector did not operate in the informal sector.

“Mr. Howard’s case was that it could be inferred, against the background of strong evidence of bribery and corruption by P&ID, that this cash was used to pay bribes to Nigerian officials…

“Mr. Mill’s response to this was that following the entry into the GSPA, in the two years until the commencement of the arbitration, P&ID was pressing the government to implement its side of the bargain in forums which made it highly unlikely that all the participants were a party to the alleged fraud.

“For the reasons already given, Nigeria has to my mind a strong prima facie case in fraud in its serious irregularity challenge.

“On closer investigation, this is not the type of case Butcher J rightly warned about in his judgment ordering the present hearing, where a party who has been unsuccessful in the arbitration alleges fraud in relation to the procurement of the underlying contract or in relation to the conduct of the arbitration, when that was not properly investigated at the time of the arbitration: The Federal Republic of Nigeria v Process & Industrial Developments Limited [2020] EWHC 129 (Comm), [31].

“With that as background, I find persuasive Mr. Howard’s submission that the fairness factor does have an impact in challenges where there is strong prima facie evidence of fraud, certainly of the through-going character alleged in this case.

“Not only is the integrity of the arbitration system threatened, but that of the court as well, since to enforce an award in such circumstances would implicate it in the fraudulent scheme.

“The delay in this case is extraordinary and weighs heavily on the side of the balance against an extension. In my view, however, other factors bring it down in favour of an extension.”

The judge insisted that Nigeria had acted reasonably in asking for extension of time to make its case against P&ID.

He also declined imposition of sanctions on Nigeria as argued by P&ID’s counsel.

He added: “As I have explained, the delay is not in my view the result of a deliberate decision made because of some perceived advantage, and in all the circumstances, Nigeria has acted reasonably.

“Given the strong prima facie case of fraud which I have concluded Nigeria has established, the position is along the lines of that identified in Terna, where Popplewell J identified the substantial injustice an applicant would suffer in respect of the underlying dispute if deprived of the opportunity of making a challenge should an extension of time be refused: Terna Bahrain Holding Company WLL v Bin Kamil Al Shamsi [2012] EWHC 3283 (Comm), [2013] 1 Lloyd’s Rep 86, [33].

“For the reasons I have given, P&ID has contributed to the delay, and it will not by reason of the delay suffer irremediable prejudice in addition to the mere loss of time if the application is permitted to proceed. Although not a primary factor, fairness in the broadest sense favours an extension in this case.

“For the reasons given, I grant Nigeria’s applications for an extension of time and relief from sanctions.

Culled from The Nation

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