REVEALED: Details of Aondoakaa’s testimony against Nigeria in $2.3bn Mambilla arbitration

In an attempt to deny TheCable’s report that he testified against Nigeria in the ongoing arbitration at the International Chamber of Commerce (ICC), Paris, France, the media team of Michael Aondoakaa, former attorney-general of the federation (AGF), has released the witness statement he submitted to the tribunal.

Rather than exonerate him, however, the statement provides the extensive detail of his submissions in support of Sunrise Power over the controversial build, operate and transfer (BOT) contract for the Mambilla hydroelectric power project.

In an interview with TheCable last year, former President Olusegun Obasanjo challenged his former minister of power, Olu Agunloye, to tell Nigerians where he derived the authority to award the $6 billion 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,” Obasanjo told TheCable.

Agunloye later issued a statement insisting that he had Obasanjo’s approval — although it turned out that it was a letter of comfort his principal approved to be issued to Sunrise and not an authorisation to award the contract.

It also turned out he issued the letter of award a day after the Federal Executive Council (FEC) decided to put it on hold.

‘SEEMINGLY FRAUDULENT MEMO’

On August 5, 2008, Leno Adesanya, promoter of Sunrise Power, had written to President Umaru Musa Yar’Adua, Obasanjo’s successor, requesting that he should authorise the signing of a detailed BOT agreement with the ministry of energy (power).

He also asked that a power purchase agreement (PPA) be signed with the PHCN and a securitisation agreement  be signed with the ministry of finance and ministry of energy (petroleum).

Tellingly, he requested that Yar’Adua should authorise the payment and/or financial guarantee from a “first class” Nigerian bank of 25 percent of the $6 billion provisional contract sum — even though he, Aondoakaa and Agunloye now claim Nigeria did not have any financial obligation.

Yar’Adua sent the letter to the minister of state for power on August 11, 2008 with a comment: “You may have time to look into this seemingly fraudulent memo”.

This was a year after Aondoakaa, who was AGF from July 2007 to February 2010 under Yar’Adua, had defended the controversial contract in his legal opinion to the president.

Aondoakaa, a senior lawyer, has now filed a witness statement in Paris to counter Nigeria’s claims against Sunrise.

‘I ONLY DEFENDED MYSELF’

In a statement on Wednesday, Aondoakaa described TheCable’s report as “fake news”, insisting he did not testify against Nigeria but only defended himself because of the “unfounded allegations against me in certain paragraphs 165 and 166” of the country’s statement of defence and counterclaim before the tribunal.

However, he was silent on how he got the details of Nigeria’s claims — arbitration filings are strictly confidential and are not to be made available to a third party.

Aondoakaa’s witness statement was a direct response to Nigeria’s brief of argument as he quoted extensively from it — a clear confirmation that he had access to it.

Also, Aondoakaa was silent on who invited him to make a witness statement if he was indeed not a witness for any party in the arbitration and, therefore, had no right of audience.

But TheCable confirmed that Aondoakaa is listed as a witness by Sunrise Power, which is relying on his witness statement in its brief of argument.

Incidentally, his witness statement was submitted to the tribunal by Sunrise Power.

TheCable has also established links between Aondoakaa and the lawyer representing Adesanya in his case against the Economic and Financial Crimes Commission (EFCC) in a federal high court sitting in Abuja.

AONDOAKAA’S WITNESS STATEMENT

In his witness statement made available to TheCable by his media team, Aondoakaa reiterated his claim as minister in 2007 that “after a close review of the case articulated by the Ministry of Justice in the matter and having considered a related Memorandum from the Permanent Secretary, Federal Ministry of Energy, it became clear that the company, indeed, has a strong case against the Government. It was on this basis that several meetings were held with M/S Sunrise Power and Transmission Co. Ltd…”

He wrote: “Throughout my review of the case, resulting in my first legal advice, I did not see where President Obasanjo queried the Minister who was involved in the award of the contract. Furthermore, the issue of want of Federal Executive Council (FEC) approval was never raised previously from the records made available to me. However, when I was analysing this matter with the relevant persons at the Ministry, it was never raised to me that the contracts would need an approval from such executive bodies. Mind you, if there had been anything suspicious about the 2003 award, I would have expected the Federal Government to have dealt with it before I came into office in 2007. At the time I wrote the first legal opinion, I took up the signed award letter which stated that within seven days, if Sunrise did not accept the contract award will lapse. I considered basically as matter of law of contract that the contract was consummated within seven days with the acceptance of the offer.

“Furthermore, the contract was a Public Private Partnership (PPP) contract. No money was to be expended on the side of the FGN. Sunrise produced evidence of financing arrangements from Chinese Exim bank to finance the Mambila project. I also did not see the rationale where the contract was taken away as PPP from Sunrise and awarded to another firm as a procurement contract with FGN to finance from the loan to be procured from the same Chinese Exim bank. I saw the legal complications that will result to huge litigation and it was better to avoid litigation. I did not see anything wrong with my legal opinion and it has been consistently followed by my successors. Malami himself followed it. Two Attorneys General and two Presidents did not query. The first legal opinion was done in good faith by me.

“Indeed, after I sent the First Legal Opinion to the President, I was called by the President to chair the meetings related to this topic. In the Presidential Villa involving Sunrise and Federal Government of Nigeria officials in 2008. Nobody raised the issue lack of Federal Executive Council (FEC) approvals at the meeting held at the Presidential Villa in 2008 which I was the Chairman.

“Most importantly, there was no specific reason for me to doubt whether the presidential approval was given because acting as a Minister, Dr Agunloye had a bona fide duty and he acted as a representative of the government, based on my understanding and facts made available to me.

“On 25 February 2008, I wrote another legal memorandum in response to further directives received from President Yar’Adua regarding the ongoing dispute involving Sunrise and the Mambilla Project (the Second Legal Opinion).

“On or about late July 2008, I was invited by President Yar’Adua to meet him at the presidential villa regarding the CGGC contract. It is worth noting that no Minister can simply visit the presidential villa without a prior appointment with the President, as one must still undergo security screening. When I went there, I was informed that there was a meeting that the President was supposed to chair. Under the hierarchy of the FEC, if the President is not present, the Vice President is next in line to chair the meeting, followed by the Attorney General.

“On behalf of the President, I was then entrusted with the responsibility to chair the meeting that included Mr. Adesanya, the then Ministry of Power and Steel, Mrs. Fatima Ibrahim and the then Permanent Secretary, Mr. Steve Orosanye. In that meeting, I maintained the position of the FMOJ, which was that Sunrise was legitimately awarded the Mambilla project in the first place. I also insisted on the fact that the Federal Government should try to convince CGGC to become a subcontractor to Sunrise.”