The former Attorney-General of the Federation (AGF), Abubakar Malami (SAN), and his successor, Lateef Fagbemi (SAN), have offered contrasting accounts of the controversial $200 million settlement reached between the Federal Government and Sunrise Power over the Mambilla Hydroelectric Power Project.
While Malami said on Tuesday that the settlement was pursued in Nigeria’s interest and was not motivated by any promise of personal financial benefit, Fagbemi stated that the protracted dispute and litigation had held the Mambilla project “hostage” and deepened the country’s energy poverty.
Their differing positions emerged after an International Chamber of Commerce (ICC) Arbitration Tribunal in Paris delivered its final award on September 16.
The September 16 final award rejected Sunrise Power and Transmission Company Limited’s claims against Nigeria and ordered the company and its promoter, Leno Adesanya, to reimburse Nigeria $11.82 million in legal fees and $414,125 in arbitration costs.
The dispute centres on the Mambilla project in Taraba State, whose development dates back to a 2003 agreement under which Sunrise was to construct a 3,050MW hydropower plant on a build-operate-transfer basis.
Sunrise subsequently commenced arbitration against Nigeria in 2017, seeking about $2.35 billion over the project. The dispute later produced a January 2020 settlement under which Nigeria was to pay Sunrise $200 million, followed by a March 2020 addendum that introduced a further $200 million default provision, potentially raising Nigeria’s exposure to $400 million plus interest.
In his reaction on Tuesday, Malami, through his Special Assistant on Media, Mohammed Bello Doka, rejected suggestions that his actions as AGF were undertaken pursuant to a corrupt agreement or in exchange for personal financial benefit.
“Malami rejects any suggestion that his official actions were undertaken pursuant to a corrupt agreement or in exchange for personal financial benefit,” the statement said.
Malami argued that the dispute predated his tenure as AGF, noting that the controversy had existed since 2003 and had passed through several administrations, attorneys-general and ministries.
He said the government’s consideration at the time was whether “an asserted multibillion-dollar exposure, continuing litigation, financing difficulties and delays to the Mambilla project could be brought to an end through a substantially smaller negotiated settlement.”
Malami also pointed out that the $200 million settlement was never paid to Sunrise, adding that there was no evidence before the tribunal linking him to any financial benefit from the proposed arrangement.
“One obvious factual question is whether any money or other financial benefit from Sunrise, Adesanya or any connected entity was ever received by Malami pursuant to the alleged arrangement,” he said.
“The settlement money itself was never paid by the federal government to Sunrise.”
The former AGF also acknowledged that former President Muhammadu Buhari did not approve the payment, saying he subsequently instructed government lawyers to resist Sunrise’s attempt to enforce the settlement against Nigeria and preserve the Federal Government’s legal position.
Malami further cautioned against presenting the tribunal’s findings as a criminal conviction, noting that the proceedings were commercial arbitration between parties to a dispute and that he was neither a party to the proceedings nor given an opportunity to state his own side of the story.
Fagbemi, however, said the legal battle had come at a substantial cost to Nigeria, particularly in terms of the delay to the power project.
According to the AGF, the progress of the Mambilla project was “held hostage” by the “relentless litigation and arbitration” instituted by Sunrise.
He said the tribunal had established that the settlement agreement and its addendum were not binding on Nigeria because the former government officials who signed them lacked the requisite authority.
“As a result, the project has been unable to achieve financial close, depriving Nigeria and its people of the enormous economic benefits of 3,050 megawatts of clean, renewable hydroelectric power,” Fagbemi said.
He added that the consequences of the delay included “lost power generation, foregone industrial output, and continued energy poverty.”
The AGF said the tribunal’s decision sent a message that Nigeria “will not be a soft target for predatory litigation and arbitration.”
Fagbemi also commended President Bola Tinubu for maintaining that Nigeria should not succumb to what he described as “fraudulently contrived contractual agreements” and adverse claims arising from them.
The ICC tribunal, in its 616-page award, found the settlement agreements unenforceable, including on grounds of corruption and violation of Nigerian public policy. It also rejected Sunrise’s claim for $400 million, while directing the company and Adesanya to bear their own legal expenses.
Malami said he would issue a comprehensive response to the tribunal’s individual findings after reviewing the full award and the underlying records.
