The International Chamber of Commerce (ICC) Tribunal has rejected claims by Sunrise Power and Transmission Company Limited against the Federal Republic of Nigeria over a controversial settlement linked to the Mambilla Hydroelectric Power Project.
However, in its 616-page Final Award delivered on Thursday, the tribunal found that former Attorney-General of the Federation and Minister of Justice, Abubakar Malami, and Leno Adesanya, promoter of Sunrise, had reached a corrupt deal in connection with the settlement. Malami has denied the allegation.
The tribunal ordered Sunrise and Adesanya to reimburse the Nigerian government $11.8 million in legal costs.
The dispute centres on the development of the 3,960-megawatt Mambilla Hydroelectric Power Project in Taraba State and dates back to 2003.
Sunrise had sought $680 million from Nigeria as a settlement sum and interest in relation to another arbitration in which it is seeking more than $2.7 billion in compensation and interest.
At the heart of the latest proceedings was a Settlement Agreement signed on January 2, 2020, under which Nigeria was expected to pay Sunrise $200 million.
The agreement was followed by an Addendum dated March 25, 2020, which introduced an additional $200 million default provision, potentially increasing Nigeria’s exposure to $400 million.
Sunrise subsequently asked the tribunal to compel Nigeria to pay the $400 million, comprising the original settlement amount and the additional default sum.
The tribunal rejected the claim, holding that the agreements were not binding on Nigeria because they had not received the required presidential approval.
More significantly, the tribunal found that the agreements were tainted by corruption and were therefore unenforceable under Nigerian public policy.
The corruption allegation arose partly from testimony given by Adesanya, who was a key witness for Sunrise in the proceedings.
According to the tribunal, Adesanya alleged that Malami solicited a bribe during negotiations over the settlement after the $200 million agreement had already been signed.
Adesanya also implicated the former Minister of Power, Saleh Mamman, in the alleged discussions.
He testified that during a conversation involving Malami and Mamman, he heard that Nigeria would initially pay only half of the $200 million settlement, with the balance to be released after he had done “what is needed.”
The tribunal said Adesanya claimed to have obtained audio and video recordings of the alleged solicitation.
It noted that such recordings could have constituted significant evidence if they had been produced, particularly in establishing the nature of the alleged arrangement.
However, the tribunal said the recordings were not produced before it by Sunrise or Adesanya.
Despite the absence of the recordings, the tribunal concluded that the evidence before it was sufficient to establish that a corrupt deal had been reached between Adesanya and Malami.
The tribunal consequently held that the Settlement Agreement and its subsequent Addendum were products of corruption.
It further stated that the agreements violated Nigerian public policy and could not be enforced against the Federal Government.
The tribunal also examined Malami’s dealings with former President Muhammadu Buhari over the proposed settlement.
According to the award, Malami made several attempts to secure Buhari’s approval for the settlement but failed on different occasions.
The tribunal cited a handwritten note dated April 20, 2020, in which Buhari withheld approval, stating that the Federal Government had not got the $200 million required to pay Sunrise.
It also referred to a January 18, 2021 letter from Buhari’s Chief of Staff to Malami concerning another attempt to obtain approval.
The former president’s handwritten response on the document was reportedly simply: “Not approved.”
The tribunal said Malami nevertheless persisted in making the case for the settlement in favour of Sunrise.
It further found that Malami and Adesanya maintained direct contact through WhatsApp and coordinated on different occasions despite formally representing opposing interests.
According to the tribunal, the evidence showed that Malami acted against Nigeria’s interests and was motivated by other incentives.
The tribunal also noted that Malami did not appear before it to give evidence during the proceedings.
“In conclusion, with respect to the corruption allegations in relation to the Settlement Agreement and the Addendum thereto, the Tribunal therefore considers that a corrupt deal was reached between Mr Adesanya on the one hand, and Mr Malami on the other hand,” the award stated.
The tribunal therefore rejected Sunrise’s claim that Nigeria had breached its obligations under the Settlement Agreement and Addendum.
It also rejected the company’s demand for $400 million, including the $200 million settlement sum and the additional $200 million default provision, as well as its claim for interest.
However, Malami has rejected the corruption allegations contained in the tribunal’s findings.
In a statement issued by his Special Assistant on Media, Mohammed Bello Doka, the former minister urged that the findings be considered alongside the complete documentary and evidentiary record contained in the 616-page award.
Malami said the Mambilla dispute predated his tenure as Attorney-General and Minister of Justice, having originated in 2003 and passed through successive administrations and government officials.
He explained that his involvement followed a 2016 presidential directive to resolve outstanding disputes relating to the project, after which the Ministry of Justice was tasked with advising the Federal Government on its legal exposure and possible resolution.
According to Malami, Sunrise initially proposed a $500 million settlement during discussions in London in November 2019, while representatives of the Federal Government responded with an offer of $100 million before a $200 million settlement was subsequently considered.
Malami maintained that Buhari never approved the proposed $200 million settlement and said the former president’s position was communicated to Sunrise in April 2020, while another request in January 2021 was rejected with the words, “Not approved.”
He added that he subsequently instructed government lawyers to resist Sunrise’s efforts to enforce the settlement against Nigeria.
On the allegation that he was promised a share of money from Sunrise, Malami described the claim as false and denied receiving any personal financial benefit from the company.
He also pointed out that though Adesanya claimed to possess audio and video recordings relevant to the allegations, none of the recordings was presented before the tribunal.
Malami further stressed that the ICC proceedings were commercial arbitration and not a criminal trial, arguing that the tribunal’s findings should therefore not be presented as a criminal conviction against him.
He welcomed the rejection of Sunrise Power’s claims, saying the outcome ultimately protected Nigeria from substantial financial exposure arising from the disputed settlement.
