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Sept. 23, 2024
A Federal High Court in Abuja on Monday, stopped the Economic and Financial Crimes Commission, EFCC, from prosecuting one Mr. Leno Adesanya, the promoter of Sunrise Power and Transmission Co Ltd, on allegations bordering on the six billion dollars Mambilla Hydroelectric Power Project fraud.
Justice Inyang Ekwo, in a judgment, also gave an order of mandatory injunction compelling the EFCC to remove Adesanya’s name and photograph from its wanted list.
The order is pending the determination of the contractual dispute between the company and Federal Ministry of Power and Steel.
The judge equally ordered that the anti-graft agency should remove all other negative contents concerning or pertaining to Adesanya in connection with any criminal allegation associated with the contract.
He, however, refused to grant a relief seeking compensation in the sum of N1 billion against the defendants.
“On the issue of compensation, I have stated before that this court, at this moment, is concerned with the protection of the sanctity of the arbitral proceeding of the International Chamber of Commerce Court of Arbitration based on the UN Conventions on international dispute resolutions.
“Nigeria (the 2nd defendant in this case) is not just a signatory but has domesticated by virtue of AMA 2023.
“This judgment is to ensure that parties are compelled to do so. This is the order of this court,” he said
The judgment was delivered following a suit marked: FHC/ABJ/CS/267/2024 filed by plaintiffs’ lawyer, M.S. Diri, SAN.
The suit is against the EFCC, the ministry, the Federal Government of Nigeria, and the Attorney General of the Federation (AGF) as 1st to 4th defendants respectively.
The EFCC had declared Adesanya wanted for “an alleged case of conspiracy and corrupt offer to public officers” in relation to the Mambilla project.
However, Adesanya and Sunrise Power and Transmission Co Ltd, listed as 1st and 2nd plaintiffs, sued the defendants through their lawyer.
Diri sought a perpetual injunction restraining the EFCC from further investigating, inviting, or publishing Adesanya’s name as a wanted person on its website: https://www.efcc.gov.ng and all other social media handles and notice boards with respect to the project.
The senior lawyer prayed the court to determine the propriety of the anti-graft commission’s powers to investigate the commercial transaction between his clients, the federal government, and the Ministry of Power, even when the case was already pending at the International Chamber of Commerce Court of Arbitration in Paris.
He argued that Adesanya, seeking to ensure sustainable power in Nigeria, proposed constructing the Mambilla Hydroelectric Power Project through Sunrise Ltd as the special purpose vehicle to drive the project.
He submitted that in 2005 and 2006, former President Olusegun Obasanjo approved financial negotiations for the project, but to date, no funds had been disbursed by the Federal Government to the plaintiffs regarding the contract.
He said in an effort to amicably resolve the issues concerning the project, the company wrote letters to the Ministry of Power, leading to meetings between his clients and the executive branch of government.
“Following these, the Federal Government agreed to pay the 2nd plaintiff the sum of $200 million within 14 days of executing the Terms of Agreement, and failure to do so would trigger the commencement of 10% compound interest per annum.
“As a result of the Terms of Settlement, the arbitration in Case No. 23211 was withdrawn,” he said.
He added that by a letter dated April 22, 2020, rather than honouring the agreement, the Federal Government wrote through the AGF seeking a review of the terms.
“Consequently, the 2nd plaintiff instituted fresh arbitral proceedings: Sunrise Power and Transmission Company Limited v. Federal Government of Nigeria – ICC Case No: 26260/SPN/AB/CPB (Exhibits D and E),” the lawyer said.
He stated that the arbitral proceeding was scheduled for virtual hearing on March 22.
Diri said that despite the pending case, the Federal Government and its security agencies, including the EFCC, sought to criminalise and scandalise the Mambilla Project, aiming to evade their legal contractual obligations.
In response, the EFCC’s lawyer, Attah Ocholi, argued that evidence of criminal activity was established against the plaintiffs during the investigation, leading to charges being framed in a High Court.
“On December 14, 2023, a warrant of arrest was issued against Adesanya to ensure his presence in court,” Ocholi said.
The EFCC also denied being used by the Federal Government or any other entity to witch-hunt or intimidate the plaintiffs, emphasising that the investigation and prosecution were related to the contractual award for the Mambilla project without Presidential and Federal Executive Council’s approval.
Delivering the judgment, Justice Ekwo held that since the Ministry of Power had contested the claims of the plaintiffs and had counterclaimed against them at the International Chamber of Commerce Court of Arbitration, the sanctity of the arbitral proceedings must be respected and protected.
He 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 observed that Sunrise Ltd had instituted fresh arbitral proceedings against the Federal Government of Nigeria, which are ongoing.
Although the judge agreed with the EFCC’s argument that fundamental rights provided by the constitution are not absolute, he however held that the assertion did not serve as a defence against violation of fundamental rights that did not conform to constitutional provisions.
The judge further held that regarding the EFCC’s publication of Adesanya’s name and photograph as a “wanted person” on its website, he did not find any valid defence from the agency.
Justice Ekwo subsequently declared that the commission was not legally entitled to investigate, resolve or prosecute the contractual dispute between Sunrise Ltd and the Ministry of Power and the Federal Government, pending before the International Chamber of Commerce Court of Arbitration in Paris, under ICC Case Reference No. 26260/SPN/AB/CPB.
The anti-corruption agency is currently prosecuting Dr Olu Agunloye, a former Minister of Power and Steel during President Obasanjo’s administration, in an FCT High Court on alleged $6 billion Mambilla hydropower contract.
The EFCC had alleged that Agunloye “corruptly received the sum of N3,600,000.00” through his Guaranty Trust Bank account number: 0022530926 from Sunrise Power and Transmission Company Limited (SPTCL) and Leno Adesanya for approving the Mambilla Hydroelectric Power Station project.(NAN)
