A London Commercial High Court has reserved July 13 and 14 for hearing a suit to determine whether Nigeria can challenge the $9.7 billion award granted by a London Arbitral Tribunal in favour of Process and Industrial Development (P&ID) against the Federal Government.
The suit had arisen against the backdrop that Nigeria had earlier failed to challenge the tribunal’s decision within the 28-day window within which it had the right to file such an appeal.
The issue now before the court for resolution on the reserved date is whether, in light of Nigeria’s tardiness, the court can still be moved to reset the clock.
The court’s ruling on the instant suit will have significant implication for the progress of Nigeria’s case against P&ID and the disputed arbitral award.
It would be recalled that Nigeria had earlier applied to a United States’ court for the right to issue subpoenas to certain entities and persons within its jurisdiction with the aim of gathering information on P&ID under the 1782 statute.
The country told the US court it was seeking the 1782 statute to gather information for a domestic criminal investigation.
Typically, the 1782 application is hardly challenged (P&ID didn’t either), and so the judge granted the request.
Nigeria subsequently issued the subpoenas to ten banks seeking information on P&ID, following which Abubakar Malami (SAN), the Attorney General of the Federation, would submit the information gathered in the US to the English Commercial Court.
JP Morgan, one of the subpoenaed entities, wrote to the court, stating they would challenge the subpoena if it was too broad in scope.
However, concerns have been expressed that Nigeria may have wilfully misled the US courts to influence the legal process in the UK.
Lawyers for P&ID have suggested that given that to date there’s been no involvement of the US Department of Justice in the process by which the country obtained the right to subpoena, the Nigerian government might be subverting international agreements to avoid the scrutiny of the US courts and influence proceedings in the UK.
According to P&ID’s lawyers, the normal process is for a foreign government to first interface with the DOJ under the Mutual Legal Assistance Treaty (MLAT).
“This is so that the DOJ can act as a gatekeeper, rather than a government (including those that frequently ignore due process and have poor human rights records) conducting its own investigation in the US without any scrutiny,” they said.
Whilst Nigeria hasn’t said whether it has or not approached the DOJ, usually a representative of the Department would be present for the application to issue subpoenas.
This was, however, not the case in the instant situation, which is nearly unprecedented in US jurisprudence.
“Did Nigeria decide not to follow MLAT and instead used the 1782 statute, which is broader, as a means of avoiding scrutiny to gather information to try and influence UK court proceedings?” the lawyers queried.
The current Nigerian legal strategy is being led by Attorney General Malami, who in recent days has been accused of corruption by Ibrahim Magu, Chairman of the Economic and Financial Crimes Commission (EFCC).
Malami, in remonstrance, has accused Magu of corruption, urging President Muhammadu Buhari to sack him on that score.
Earlier, the EFCC had conducted criminal investigations into P&ID, which included the detention of witnesses.