BY Bolanle Olabimtan
A federal high court in Abuja has restrained the Economic and Financial Crimes Commission (EFCC) from prosecuting Leno Adesanya, the promoter of Sunrise Power and Transmission Co., Ltd.
The court also ordered the commission to remove Adesanya’s name from its list of wanted persons.
In February, the EFCC declared Adesanya wanted over fraud allegations in the $6 billion Mambilla hydropower contract.
The anti-graft agency said Adesanya is wanted “in an alleged case of conspiracy and corrupt offer to public officers”.
Adesanya and Sunrise had in the suit marked FHC/ABJ/CS/267/2024 challenged the EFCC’s action.
Through their lawyer, M.S. Diri, the plaintiffs asked the court to determine the propriety of the commission’s powers to investigate the commercial transaction between them, the federal government, and the ministry of power, considering that the case was already pending at the ICC International Court of Arbitration in Paris, France.
Delivering judgment on Monday, Inyang Ekwo, the presiding judge, held that since the ministry of power had contested the claims of the plaintiffs and had counterclaimed against them at the ICC International Court of Arbitration in Paris, 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.
Ekwo also observed that Sunrise Ltd. had instituted fresh arbitral proceedings against the federal government of Nigeria, which are ongoing.
He agreed with the EFCC that constitutional rights are not unlimited but ruled that it does not excuse violating rights in ways that go against the constitution.
The judge further held that the commission had no valid defence for declaring Adesanya wanted.
Consequently, Ekwo declared that the EFCC is not legally entitled to investigate, resolve, or prosecute the contractual dispute between Sunrise Ltd., the ministry of power, and the federal government pending before the ICC International Court of Arbitration in Paris, in case Reference No. 26260/SPN/AB/CPB.
The judge equally ordered that the anti-graft agency should remove all other negative contents about Adesanya in connection with any criminal allegation associated with the contract.
However, he declined to grant a relief seeking compensation in the sum of N1 billion against the defendants.
BACKGROUND
Sunrise Power had on October 10, 2017, started arbitration against Nigeria at the ICC International Court of Arbitration in Paris, seeking a $2.354 billion award for “breach of contract” concerning a 2003 agreement to construct the 3,050 MW plant in Mambilla, Taraba state, on a “build, operate, and transfer” basis.
In its defence at the arbitration, the Nigerian government alleged fraud and corruption of public officials in the award of the contract.
To resolve the issue, Abubakar Malami, the attorney-general of the federation (AGF) and minister of justice at the time, committed the federal government to pay Sunrise Power $200 million “within 14 days” of the execution of the terms of the agreement on January 21, 2020, and also pay a penalty of 10 percent in case of a default in fulfilling the settlement agreement — in addition to restoring Sunrise as the local content partner for the project.
However, TheCable learnt that former President Muhammadu Buhari refused to approve the payment of the $200 million to Sunrise Power.
“FG does not have USD 200 million to pay SPTCL,” the former president said in his reply to Malami.
Malami tried to re-negotiate the terms thereafter, blaming Nigeria’s inability to honour the agreement on the global pandemic and related economic challenges.
It was reported that Sunrise Power later agreed to discontinue the arbitral proceedings after an out-of-court settlement was reached with the federal government.
However, the arbitration was not terminated.
Former President Olusegun Obasanjo previously denied authorising Olu Agunloye, former minister of power and steel, to commit Nigeria to the $6 billion “build, operate, and transfer” contract with Sunrise Power in 2003.
Agunloye was said to have issued a letter awarding the contract a day after the federal cabinet told him to step down his request for approval and explore other sources of funding for the project.
The EFCC has now filed a seven-count charge against Agunloye.
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