Nigeria would not have been enmeshed in the current P&ID legal quagmire if a former Attorney General of Lagos State, Olasupo Shasore, had played his role transparently, without corruption, a British court has found.
In 2014, Mr. Shasore was appointed as counsel for Nigeria in the arbitration leading to the legal tussle considering his expertise in the legal profession and his position as a former president of the Lagos Court of Arbitration.
According to documents obtained by PREMIUM TIMES, Mr. Shasore was paid $2 million to assist in the first and second stages of the arbitration.
Sequel to an investigation by the Economic and Financial Crimes Commission (EFCC), a senior partner of his firm reportedly gave evidence that Mr. Shasore kept his involvement in the case hidden and ran it through a different firm, Twenty Marina Solicitors.
The Nigerian government also presented evidence that he did not give his best to defend the country’s interest but rather kept pushing for settlement, suggesting that he was compromised.
Background
On January 11, 2010, P&ID, a British firm, signed a gas supply and processing agreement with the Ministry of Petroleum Resources on behalf of the Nigerian government.
Going by the provisions of the agreement, the foreign company was expected to build and operate an Accelerated Gas Development project to be located at Adiabo in Odukpani Local Government Area of Cross River State.
On the other hand, the Nigerian government was to provide natural gas from oil mining leases (OMLs) 123 and 67 operated by Addax Petroleum and supply to P&ID to refine into fuel suitable for power generation in the country.
An initial volume of about 150 million cubic feet of gas per day was expected to be supplied by Nigeria. Eventually, it was to be summed up to about 400 million cubic feet per day during the 20-year period.
The company accused Nigeria of not fulfilling its part of the bargain after negotiations were opened with the Cross River State government for allocation of land for the project.
P&ID claimed the failure to construct the pipeline system to supply the gas “frustrated the construction of the gas project, thereby depriving it of the potential benefits from over 20 years’ worth of gas supplies”.
The company said attempts to settle out of court with the Nigerian government failed. In August 2012, P&ID served the Nigerian government a Request for Arbitration.
However, Nigeria argued before the tribunal that “the failure of P&ID to acquire the site and build Gas Processing Facilities was a fundamental breach and that no gas could be delivered until this has been done.”
But the tribunal ruled that Nigeria’s obligations under Article 6B were not conditional upon P&ID having constructed the gas processing facilities.
In July 2015, the arbitral tribunal found that Nigeria had repudiated its obligations under the GSPA and that P&ID had been entitled to accept the repudiation and claim damages for breach.
On December 23, 2015, the government asked for the award to be set aside.
That was after earlier committing that the arbitration decision shall be final and binding upon parties. Consequently, on February 10, 2016, the application was dismissed, paving way for the hearing on July 22 to 24, 2016 to determine the damages.
Consequently, a commercial court in the United Kingdom, awarded $8.9 billion (about N3.2 trillion) in favour of P&ID.
In a twist of event on Friday, the Nigerian government secured a judgement of a British court following its appeal to suspend the unfavourable ruling.
The judgment, delivered by Ross Cranston, granted Nigeria’s appeal for a stay of execution of the awarded sum.
Shasore’s alleged betrayal
Right from when Mr Shasore’s service was engaged in 2014, he alongside members of the settlement team, discouraged the Nigerian government from strongly contesting claims of the British firm, according to to the documents PREMIUM TIMES has seen.
Rather, they encouraged the then minister of petroleum, Diezani Alison-Madueke, to pursue settlement discussions.
The team consisted of Mr Shasore, the legal representative of the ministry of petroleum resources, Folakemi Adelore, and Ikechukwu Oguine, who was the coordinator, legal services at the NNPC.
The NNPC wrote to the Minister for Petroleum Resources, Mrs Alison-Madueke, on September 1, 2014, agreeing with the Attorney General, Mohammed Adoke, and an external counsel that the ministry had “a bad case”.
To that end, it recommended that settlement be explored but that Nigeria should, nonetheless, file a defence.
On November 11, 2014 the Attorney-General wrote to Mrs Alison-Madueke, on the advice of Mr Shasore, urging her “to pursue settlement discussions.”
Ms Adelore, legal adviser to the Ministry from 2013 to 2017, sent a memorandum to the permanent secretary of the ministry recommending a settlement with P&ID.
In December 2014, Mr Shasore, Ms Adelore and Mr Oguine travelled to London for settlement negotiations with P&ID.
On December 30, 2014, Ms Adelore wrote a memorandum to the ministry’s permanent secretary. She stated that there was no doubt the ministry was in breach of the GSPA adding the negotiating team was apprehensive that the tribunal might award P&ID’s claim of US$5.9 billion; and Nigeria should offer a lower amount which P&ID might accept.
On March 17, 2015, Mr Adoke, the Attorney-General, forwarded a letter from Mr Shasore to Mrs Alison-Madueke, stating that “notwithstanding our line of defence, the Federal Government is still liable for failure to supply the requisite gas”.
The statement explained why Nigeria was unable to supply gas to P&ID and argued that its only role was as a “facilitator” between P&ID and the oil companies. However, there were no exhibits to the statement.
Meanwhile, when the Tribunal held a case management hearing by telephone on May 6, 2015, neither Nigeria’s counsel nor P&ID legal representative applied for cross-examination of witnesses.
During the liability hearing, which began at 10 a.m. on June 1, 2015 and ended early in the afternoon the same day, Mr Shasore stated that he hoped to cross-examine Michael Quinn, the founder of the company, on the matter.
The chairman of the Tribunal responded that there had been no application to cross-examine Mr Quinn, a procedural goof on the part of Mr Shasore, a senior arbitrator.
Mr Quinn had died at the time Mr Shasore wanted to cross-examine him, an attempt believed to aid the argument of P&ID and sabotage the interest of his country.
More indictment
Also, the Nigerian government noted in its appeal that Mr Shasore, for more than a year, failed to cooperate in handing over necessary materials to Bolaji Ayorinde, the senior lawyer who replaced him.
Nigeria’s legal representative, Mark Howard, added that in the first two stages of the arbitration, Mr Shasore, deliberately “defended the case thinly”.
“The reason was that he had colluded with P&ID, with the inevitable result that Nigeria would lose the case,” Mr Howard stated.
He further argued that Mr Shasore dragged his feet when the conduct of the arbitration was transferred from the Ministry to the Attorney General for the ‘quantum’ stage.
“At the quantum stage,” Mr Howard submitted, “Nigeria’s new counsel, Mr Ayorinde, was precluded from reopening the matter. Not only did he not know of Mr Shasore’s behaviour, he had no basis to apply to reopen the Tribunal’s prior findings.”
Corruption allegations
While the case was still ongoing, Mr Shasore allegedly made a questionable payment of $100,000 each to Ms Adelore and Mr Oguine.
“However, what persuades me of a prima facie case of dishonesty in Mr Shasore’s conduct of the arbitration are his payments of US$100,000 each to Ms Adelore and Mr Oguine. Their salaries as public servants, according to the Attorney General, Mr Malami, were some US$5000 per annum.
“EFCC had information from the bank accounts of the recipients which contradicts the argument that Mr Shasore gave them as a gift.
“.. that does not seem to me a complete and honest explanation for why he should make these payments to these senior public servants.”
“Part of the picture is that after the payment to Ms Adelore, she wrote to the Ministry’s permanent secretary on 30 December 2014 recommending a settlement. We also saw that when the EFCC investigated in the first part of 2016, she was the source of information at the Ministry. I have also mentioned that Mr Oguine was charged with
producing witnesses for Nigeria but instead put his name to a witness statement in May 2015 which the Tribunal said was of no assistance to its case,” Mr Howard argued.
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