Tue. Dec 10th, 2019

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Nigeria: How Former Chief Justice Helped UK Firm Win U.S.$9.6 Billion Judgment Against Govt

8 min read

For the former Chief Justice, it was all business.

It did not matter that he was providing an expert legal opinion against his country whose judiciary he once headed. It did not matter that Nigeria stood to lose the case on account of his testimony, neither did it matter that offering such service to a foreign company was illegal.

All that mattered, it seems, was money.

PREMIUM TIMES can today confirm that a key legal argument the British firm, P&ID Limited, used in securing the humongous arbitral award of $9.6 billion (N3.2 trillion) against Nigeria was provided by former Chief Justice of Nigeria, Alfa Belgore.

Acting as a legal consultant, Mr Belgore, head of the Supreme Court between 2006 and 2008, painstakingly analysed Nigeria’s laws, exploited its shortcomings and cited case laws for the benefit of the firm.

In August 2019, the UK’s Business & Property Courts granted P&ID’s request to enforce a 2013 award against Nigeria by a three-member arbitration tribunal.

The tribunal relied on the Arbitration Act 1996 (England and Wales) and the Nigerian Arbitration and Conciliation Act 2004.

The amount standing against Nigeria is about 20 per cent of the country’s foreign reserves, and if executed, the consequences will be unpleasant for every Nigerian, Finance Minister Zainab Ahmed said.

Lawyers say the case presented a clear conflict of interest, and more importantly, that Mr Belgore violated the constitution by choosing to offer his service to a P&ID. Section 5 of the Fifth Schedule of the 1999 Constitution prohibits former presidents, vice presidents, Chief Justice of Nigeria, governors and deputy governors from working for foreign companies or enterprises.

Mr Belgore’s legal advice to P&ID

Process and Industrial Developments Limited (P&ID) accuses the Nigerian government of breaching a 2010 gas contract agreement. Based on that allegation, the UK tribunal accepted Mr Belgore’s opinion with two members of the tribunal – Lord Hoffman and Sir Anthony Evans – ruling that the British Virgin Island firm is entitled to $6.6billion in damages plus interest until the amount is paid. A third member – Nigeria’s Bayo Ojo – gave a dissenting opinion, saying P&ID should be paid not more than $250million.

PREMIUM TIMES has obtained full details of the advice provided by Mr Belgore to rubbish the Nigerian government’s defence in the suit.

In the written legal advice offered to P&ID, Mr Belgore, who is still a member of the National Council of State, a key advisory body to Nigerian presidents, specifically admitted that he was working for a foreign company.

“I have been instructed on behalf of Process and Industrial Developments Limited (“P&ID”), a company incorporated in the territory of the Virgins Island (“BVI”), to prepare a statement addressed to the Arbitral tribunal in answer to the questions put to me by P&ID in connection with this arbitration,” he wrote.

Justice Alfa Belgore: By working for P&ID, the former CJN violated the constitution

He further explained that he was providing the legal opinion for the benefit of P&ID’s solicitors, Harcus Sinclair LLP, which had provided him with the preliminary objections, the Memorandum of Understanding between P&ID and the government, and a copy of the gas supply and processing agreement between P&ID and the government.

He explained that he considered several legal texts, statutes and case reports as well as evidence to prepare the report which he admitted will be used in arbitration against Nigeria.

“This report has been prepared solely for the use of this arbitration,” he said. “I understand that the report will be made available to the Arbitral Tribunal, the Ministry of Petroleum Resources of the Federal Republic of Nigeria and their respective legal advisers and other witnesses or experts.”

After affirming that he was competent to give the legal advice in the case as well as stand as an expert witness, he explained that two questions were posed to him:

“Whether or not the Ministry lacked legal and/or contractual capacity to validly enter into the GSPA as alleged, and whether or not the GSPA is void as a result.”

“Whether or not the claimant failed to comply with the provision of section 54 of the Companies and Allied Matter Act, Cap C20 Laws of the Federation of Nigeria 2004 (“CAMA”), as alleged and if so whether the GSPA is void and /or affected by illegality, as a result.”

He then presented extensive legal arguments to puncture the defence by Nigerian government lawyers.

Summarising his response to the first question Mr Belgore said, “In my opinion, the Ministry entered into the GSPA as an organ of Government. As such the GSPA is binding on the Government and the Ministry is correctly named as a defendant in its capacity as an organ of Government.”

On the second questions, he said, “In my opinion there was no breach of section 54 of the Companies and Allied Matters Act because: (i) a separate Nigeria corporation was set up on 21 July 2006, in compliance with section 54; (ii) in an event, P&ID was not “carrying on business” by entering into the GSPA; and (iii) even of the execution of the GSPA had constituted “carrying on business” within the meaning of section 54, the Ministry has waived its right to rely upon section 54 and/or is estopped from so relying.”

Even after he stepped down as chief justice, Mr Belgore remained a powerful figure within the Nigerian government. He is a member of the National Council of State, an organ of the Nigerian Government that advises the executive on policymaking. He is also the chairperson of the Tripartite Committee on Minimum Wage, Nigerian National Honours Award Committee and Central Working Group of Nigeria Vision 20:20.20.

Some commentators wonder why a man who remained so deeply connected with the Nigerian government would provide help for an adversary of the same administration.

A constitution violation — Lawyers react

Lawyers who spoke to PREMIUM TIMES said Mr Belgore was in clear violation of the Constitution for working for P&ID and should be prosecuted in accordance with the law.

“The Constitution does not define what employment means, I have gone back to the Interpretation Act, the Interpretation Act is also quiet. But my sense is this: it is a simple straightforward interpretation,” Abdul Mahmud, an Abuja-based lawyer, told PREMIUM TIMES. “They are prohibited from service and employment from foreign companies. I think by virtue of Section 5(1) of the fifth schedule of the Constitution, he is barred. He is prohibited from doing any work for foreign companies or enterprises, P&ID is not a Nigerian company, is not registered in Nigeria. So, it is a foreign enterprise.”

He said the matter transcends the morality of a former chief judicial officer of the country working against the interest of the country. But rather a legal and Constitutional matter and should be treated as such.

“If you look at Subsection 2 of Section 5, it specifically mentions the office of the President, Vice President, Chief Justice of Nigeria, Governor and Deputy Governor of a state. But the operative section is Section 1. Section 1 says retired public officers who have held officers to which this paragraph applies. And Section 2 explicitly states the offices which include the Chief Justice of Nigeria is in breach of section 5(1&2) of the Fifth Schedule Part 1 of the Constitution.”

He said Mr Belgore should be made to face trial at the Code of Conduct Tribunal as specified by law.

“So, he can be hauled to the Code of Conduct Tribunal. It is a breach. And only the Code of Conduct Tribunal has exclusive jurisdiction over matters devolving around Code of Conduct. It is no longer a moral question; it is a Constitutional and legal question.”

He, however, said with the widespread impunity in the country he was not hopeful that the law would be allowed to take its course.

“It is very strange,” Mr Mahmud continued. “We operate in a country where people infract on the law and there are no consequences. It is a practice that we see everywhere today in our country because public institutions responsible for protecting the health of our Constitution are not performing their roles. I won’t be surprised if Belgore is taken to the Code of Conduct tribunal people will throw up all sorts of shenanigans, be ethnic, be it, class, etc. That is our country.”

Ezenwa Nwagwu, a lawyer, and the Chairman, Partners for Electoral Reform (PER), said Mr Belgore’s PI&D action reflected the character of the Nigerian political elites.

“What you are dealing with is the character of the Nigerian ruling elites. They expect patriotism from other people but in every way, they are driven by greed,” he told PREMIUM TIMES on the telephone.

He said despite Mr Belgore being in clear violation of the Constitution he may not be made to face the consequences of his action.

“In clear violation of the Code of Conduct for Public Officers, will there be any sanction? Will those who have the responsibility to deal with the issue deal with it? They will still waive it the way they waive every other thing.

“But basically, in line with what you have read, there is no argument to whether he has violated or breached the Code of Conduct by rendering service to a foreign company after holding office as the highest judicial officer of the land. There is something not sitting well about that,” he said.

Mr Belgore could not be reached to comment for this story. When this reporter dialled his known telephone line, a man who identified himself as a staff of the former CJN said his boss could not be reached for comment.

When asked if the reporter should send questions via SMS, the staff member requested to know what the question was about. When told, he said there was no need to send text messages to Mr Belgore about the matter.

Mr Belgore holds Nigeria’s second-highest award, the Grand Commander of the Order of the Niger (GCON). In 2016, President Muhammadu Buhari appointed him the Chairman of the Committee on National Honours Award.

As a former CJN, he is a member of the Nigerian Council of State, which is chaired by the incumbent president, is made up of past Presidents and Head of States of the country, former CJN, President of the Senate, Speaker of House of Representatives and all governors of the 36 states of the country, the minister of Justice and the Secretary to the Government of the Federation. By working for PI&D, the former CJN violated the Constitution)

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