The International Chamber of Commerce (ICC) in Paris, France, has ruled in favour of Nigeria in the $2.35 billion award sought by Sunrise Power over the Mambilla hydropower project.
The tribunal also directed Sunrise Power and its promoter to refund Nigeria’s legal fees of $11.8 million.
The award was issued on Thursday, News Point Nigeria understands.
In the decision signed by the three panellists, the tribunal dismissed Sunrise’s claim for a declaration that Nigeria breached its contractual obligations under the settlement agreement and the addendum.
It also rejected Sunrise’s claim for an order that Nigeria should pay the company $400 million in satisfaction of the settlement sum of $200 million and the default sum of $200 million.
The tribunal further declared that Leno Adesanya, the promoter of Sunrise, is bound by the arbitration agreement with Nigeria pursuant to the settlement agreement and the addendum, and that the tribunal has jurisdiction over Nigeria’s counterclaim against him and his firm.
The tribunal ordered Sunrise and Adesanya to reimburse Nigeria 75 percent of the legal fees and expenses incurred by the country in the arbitration.
The legal fees were put at $11,819,506.51, out of which $2,500,000 will be covered directly from the amount held in escrow by the ICC, which will be released upon notification of the final award.
Sunrise and Adesanya were ordered to pay Nigeria the remaining $9,319,506.51 plus interest at an annual rate of 10 percent, “compounded annually, from the date of the notification of this Final Award until such amount is paid in full”.
The arbitration cost is to be shared by Sunrise and Adesanya, who will bear 75 percent, while Nigeria will bear 25 percent.
The cost was fixed at $1,656,500.
The panel was presided over by Melaine van Leeuwen, with Stavros Brekoulakis and Simon Nesbitt as co-arbitrators.
Nigeria was represented by a team of lawyers led by Elizabeth Oger-Gross and Tolu Obamuroh, now of Paul Hastings LLP.
Sunrise had, on October 10, 2017, started arbitration against Nigeria at the ICC International Court of Arbitration, seeking a $2.354 billion award for “breach of contract” in relation to a 2003 agreement to construct the 3,050MW plant in Mambilla, Taraba State, on a “build, operate and transfer” basis valued at $6 billion.
In the second arbitration, the company is asking for a $400 million settlement, being the terms of the Nigerian government failing to honour the settlement agreement both parties entered into in 2020 to end the arbitration.
In an interview with TheCable in 2023, former President Olusegun Obasanjo challenged his former Minister of Power, Olu Agunloye, to tell Nigerians where he derived the authority to award the 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.
“If a commission of inquiry is set up today to investigate the matter, I am ready to testify. I do not even need to testify because all the records are there. I never approved it.
“When he presented his memo to the federal executive council (on May 21, 2003), I was surprised because he had previously discussed it with me and I had told him to jettison the idea, that I had other ideas on how the power sector would be restructured and funded.
“I told him as much at the council meeting and directed him to step down the memo. I find it surprising that Agunloye is now claiming he acted on behalf of Nigeria. If I knew he issued such a letter to Sunrise, I would have sacked him as minister during my second term. He would not have spent a day longer in office.”
Former President Muhammadu Buhari, on his part, denied authorising the settlement agreement of 2020.
“While I understood that my ministers of justice, power and water resources were approached by Sunrise and were engaging with various stakeholders that were involved in the project to resolve the issues blocking the project’s implementation, at no time did I specifically instruct them to enter into and conclude any settlement agreement with Sunrise Power and Transmission Company Limited,” he wrote to Fagbemi.
“Indeed, when the proposed settlement agreement and addendum were presented to me for my consideration and approval on 20th April 2020, I refused to approve the settlement deal because I was convinced that there was no basis for Sunrise’s claim.
“I hope the above clarifications will assist you in your defence of our country from these ‘invisible contractors who all too often quietly take Nigeria for many millions in out-of-court settlements’, as I stated in my recent statement regarding Nigeria’s victory in the P&ID saga.”
