TheCable

Nigeria has detailed allegations of bribery and corruption against Leno Adesanya, promoter of Sunrise Power and Transmission Company, in papers filed before a high court of the federal capital territory (FCT), Abuja, and seen by TheCable.

In his motion on notice, Olu Agunloye, former minister of power, attached documents in which the federal government alleged that Adesanya offered money and women to ministers in the Muhammadu Buhari administration in trying to secure favourable recommendations on the $6 billion Mambilla hydroelectric power project.

In January 2024, the Economic and Financial Crimes Commission (EFCC) arraigned Agunloye before a federal high court over allegations of fraud in the award of the contract in 2003.

Sunrise is in arbitration with Nigeria at the ICC International Court of Arbitration, Paris, France, demanding $2.3 billion in compensation for the country’s failure to honour the contract which was awarded by Agunloye — a day after the federal executive council (FEC) asked then-minister of power to step down the memo.

Nigeria is alleging fraud and corruption of public officials involved in the original contract award and also in the subsequent settlement agreements reached in an attempt to settle the dispute.

Nigeria is likening the conduct of Sunrise and its promoter to that of P&ID officials in the failed gas supply and processing agreement (GSPA) of 2010.

Despite securing an arbitration award rising to $11 billion against Nigeria, P&ID could not enforce it.

A UK court set it aside because public officials got illegal payments in the contracting process and this fact, considered by the judge as significant, had been hidden from the arbitration tribunal.

The court also ruled that P&ID was illegally in possession of privileged internal documents of the Nigerian legal team during arbitration.

The P&ID case ended in victory for Nigeria — with the country’s legal team now hoping this would be a precedent in arbitration cases arising from suspicious and questionable contract awards.

‘ADESANYA’S MODUS OPERANDI’

In the motion of notice dated February 26, 2024 and marked FCT/ABJ/CR/617/2023, Agunloye attached Nigeria’s defence at the arbitration wherein the country alleged that Adesanya made repeated attempts to exploit and fraudulently extract huge sums of money from the country “on false pretences”.

“Mr. Adesanya repeatedly sought to undermine Nigeria’s defence of this Arbitration by all means possible without regard to legality. As detailed below, Mr. Adesanya attempted to bribe the former Minister of Water Resources, Mr. Suleiman Adamu, in the lead-up to the settlement meeting between Sunrise and Nigeria in London on 9 November 2019 by offering him money and women and sought to bribe the former Attorney General of Nigeria and Abubakar Malami, also with money and women, in order to take decisions favourable to Sunrise and influence Nigeria’s defence in this Arbitration,” the document reads, with screenshots of WhatsApp messages attached.

“A look at the pictures of smiling young women whom Mr. Adesanya blithely offered to Mr. Adamu in November 2019 during the settlement discussions and latterly the Attorney General as inducements, can leave no doubt about Mr. Adesanya’s character.

“The below extract of Mr. Adesanya’s WhatsApp message to Mr. Malami with a picture of a woman in November 2021, when Mr. Adesanya was lobbying Nigeria is illustrative.”

Alleged extract of WhatsApp messages from Adesanya to Malami

Nigeria argued in the document that Adesanya is a man “who fully understands” how to game and take advantage of the weaknesses in the institutions of the Nigerian government.

“He wrongfully procures contracts that his companies are incapable of performing, colludes with key Government officials to obtain confidential Government documents, creates a semblance of credibility through document exchanges with Government officials, files claims against the Government, and then unlawfully seeks to pressure the Government to enter into settlement agreements with his companies in order to obtain a pay-out,” the document reads.

“Adesanya has been successful in obtaining contracts and bringing about settlement negotiations with the Nigerian Government on many occasions in the past. He has a track record of questionable settlements and not contract delivery.

“As regards Sunrise, Adesanya:

• succeeded in getting a Minister of Power, Dr. Olu Agunloye, who is currently collaborating with Sunrise/Mr. Adesanya, to issue Sunrise an award letter contrary to the decision of the Federal Executive Council (“FEC”) chaired by the President of Nigeria;
• succeeded in engineering another settlement negotiation leading to the signing of the Terms of Settlement and General Project Execution Agreement (“GPEA”) in 2012 between Sunrise and Nigeria;
• succeeded in engineering yet another settlement negotiation leading to the signing of the Terms of Settlement and Addendum to the Term[s] of Settlement (the “Settlement Agreements”) between Sunrise and Nigeria in 2020;
• almost succeeded in obtaining a pay-out from the Nigerian Government, but for the refusal of the Former President of Nigeria, President Buhari, to approve the settlement and the Ministry of Justice’s vigorous defence of this.

“In all of these settlement deals, Mr. Adesanya, advised by his consortium of Nigerian and French law firms, insist on well-crafted arbitration clauses, in order to clothe those deals with legitimacy and provide the basis to file claims against Nigeria and in furtherance of his ‘arbitration business’. That is Mr. Adesanya’s stock in trade: he simply finishes one settlement deal with the Nigerian Government and moves on to the next.

Another message to Malami

“President Buhari captured this vice well when he commented, in relation to the decision of the English Court in the P&ID case, and said: ‘It was definitely worth the struggle: this [P&ID] was an attempted heist of historic proportions, an attempt to steal from the treasury a third of Nigeria’s foreign reserves. But even at this moment, we should note what the English judge cautioned. The arbitration process in London ‘was a shell that got nowhere near the truth.’ We need better contracts, in the public and private sector. And we need greater transparency: the reality is that had P&ID not conjured up quite such an outlandish ransom, they may have found themselves in the same place as the myriad other invisible contractors who all too often quietly take Nigeria for many millions in out-of-court settlements.'”

Nigeria said if not for their “greed and outlandish claims”, Sunrise/Adesanya might have succeeded in obtaining a payout of $200 million as the price Nigeria was willing to pay for getting an important infrastructure project back on track and getting them out of the project.

“However, the price they wanted was unacceptable to President Buhari, who saw a parallel between Sunrise’s claim in this Arbitration and P&ID Nigeria and therefore refused to approve any settlement deal with Sunrise,” the document reads.

INTERFERING WITH ARBITRATION

Adesanya was accused of specifically requesting the removal of Nigeria’s counsel in this arbitration in his direct messages to Malami.

“He even called for Nigeria’s Economic and Financial Crimes Commission (“EFCC”) to investigate Nigeria’s counsel in this Arbitration for filing a request for security for costs against Sunrise,” Nigeria stated in its defence.

“Adesanya has actively tried to interfere with and prevent EFCC’s investigation into his and Sunrise’s involvement in the Mambilla Project by contacting witnesses who were invited for interview either directly or through his proxies and using his Nigerian counsel, BA Law, to coordinate this Arbitration and the satellite court action filed in Nigeria to block EFCC’s investigation.

A message allegedly sent to Malami’s aide by Adesanya to influence arbitration proceedings

“He also contacted Mr. Zaccheaus Adeyanju, the Director of the Solicitors Department at the Ministry of Justice, who was in charge of the Sunrise files at the Ministry of Justice and the preparation of the Settlement Agreements, following his invitation by EFCC. Mr. Adeyanju then deleted all email correspondence between him and Mr. Adesanya to prevent EFCC and this Tribunal from seeing the content of those emails as well as certain documents on his phone.

“The above is in addition to the evidence showing that Mr. Adesanya made payments to the Minister who purportedly awarded the contract to Sunrise without the approval of the FEC chaired by the President of Nigeria. He also made payments to senior Government officials who were involved in the negotiation and signing of a memorandum of understanding titled General Project Execution Agreement (the “GPEA”) in 2012, and has corrupted a number of Government officials who were involved in the preparation and signing of the Terms of Settlement and Addendum to Terms of Settlement in 2020.

“There can be no doubt that Sunrise/Adesanya’s involvement in the Mambilla Project was procured and sustained through collusion with and bribery of senior officials of the Government of Nigeria, as well as fraudulent acts against Nigeria. Mr. Adesanya has made a career out of exploiting his connections to individuals within the Nigerian Government and his understanding of the government’s failings  to extract and extort money from his own country, Nigeria.”

The defence said unlike in P&ID/Nigeria, where the arbitrators did not have the benefit of evaluating the evidence regarding the corrupt and shady manner in which P&ID was awarded the contract, as the English Court noted, “this Tribunal will have the opportunity to see how Mr. Adesanya conducts himself”.

Adesanya is accused of interfering with arbitration in this WhatsApp chat with Malami

Malami, Adamu, and Babatunde Fashola, former minister of power, have also submitted witness statements to the tribunal.

TheCable previously reported that former President Olusegun Obasanjo has offered to testify in arbitration or at “any forum” over the contract, which he said was illegally awarded when he was in office.

Buhari has also written to Lateef Fagbemi, Nigeria’s current attorney-general, dissociating himself from the $200 million settlement reached with Sunrise in 2020, maintaining that he did not authorise it.

“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,” Buhari wrote.

“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.”

HOW DID WE GET HERE?

Sunrise had on October 10, 2017 taken Nigeria to arbitration for “breach of contract” in relation to the agreement to construct the 3,050MW plant in Mambilla, Taraba state.

Nigerian authorities insisted that the contract award was irregular and did not go through due process.

In May 2003, Agunloye had issued a letter awarding the contract a day after the federal cabinet told him to step down his request for approval and explore other sources of funding for the project.

Sunrise initiated legal action when a bid process for the civil works was announced by the federal government in 2007 and a series of litigation has since stalled the project.

To get the project off the ground, the federal government had attempted to settle the arbitration in 2020 with a compensation offer of $200 million but a lack of funds is believed to have truncated the move.

ADESANYA APPEARS TO MOCK TINUBU

Although unrelated to the contract saga, some of the screenshots of WhatsApp messages attached to the motion appear to show Adesanya sharing uncomplimentary pictures and messages about Bola Tinubu, now Nigerian president, during the 2023 presidential campaign.

Adesanya allegedly sent a picture that appears to mock Tinubu over his soaked ‘agbada’

In one of his messages to Malami, he forwarded the images and ages of Charly Boy (71), Onyeka Onwenu (70) and another uncomplimentary of Tinubu (69).

This picture of an apparently wizened Tinubu appears to suggest he was lying about his age.

He also forwarded a picture of Tinubu with a wet overflowing gown along with a question: “Na true say Tinubu piss for body yesterday?”

It is unknown whose message he forwarded, but he appeared to have added a comment: “Unfortunate, Jagaban may have a prostate.” This could be a reference to prostate cancer.

There was no indication that Malami responded to the messages.

Adesanya has since been declared wanted by the EFCC, although he recently secured a reprieve from a federal high court in Abuja which restrained the EFCC from arresting him.

The decision is now being challenged by the EFCC.