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Introduction
Tears. Sorrow. Blood. Pains. Pangs. Anger. Hunger. Melancholy. Dejection. Hopelessness. Haplessness. Disillusionment. Poverty. Ignorance. Termites and maggots eat up the national edifice. Chaos and anarchy reign supreme. Impunity triumphs. Irredentism, cronyism, clannishness and nepotism strut around like a proud peacock. Corruption multiplies geometrically, ravaging the land. Nigeria is now the second most corrupt country in West Africa and one of the 148 most corrupt in the world. Rule of law is subsumed, human rights crushed Democracy is vanquished. Even basic civil liberties are suppressed and subjugated. Judges are brutalised, humiliated and denigrated for doing their jobs.
The judiciary is weakened, traumatised, pauperised. The legislators haemorrage the national purse with fantastic and indefensible out-of-the-world pay packets. The executive acts imperiously, untrammelled, uncontrolled, like Louis XIV of France. The cabal holds the nation down by the jugular. Less than 20 people dictate the fate of 200 million Nigerians.
There are no checks and balances. Absolutism, dictatorship, fascism, brutality bestride our democratic space like a colossus. Yet, the people, the civil society, remain docile, complicit, frightened and cowed. Mediocrity is enthroned in place of meritocracy. Hypocrisy, lies, revisionism, propaganda are elevated, celebrated and dressed in the false garb of truth and patriotism. Genuine criticism, dissent, opposition, plurality of views, are treated as treason, and at best as treasonable felony. Nigerians now murmur, rather than discuss freely. Soliloquy and monologue take the place of robust dialogue. Nigerians now live like walking corpses, like the living dead. The common man and woman languish in abject penury.
The middle class diminishes. Industries relocate to neighbouring countries. Massive disinvestment becomes the order of the day. Nigeria, once the biggest economy in Africa and the third fastest growing in the world, is today the poverty capital of the world. Parents now sell their children to survive and the children do likewise. Husbands kidnap wives and wives husbands, for cheap ransom. Insecurity becomes the order of the day. Boko Haram, herdsmen, kidnappers, armed robbers, hired assassins control our highways, pathways and forest routes. Nigeria has been turned into a gruesome crimson field of bloodbath.
There is mass suicide and homicide. Mass unemployment is the order of the day. Retrenchment becomes a norm. Education and certificates are racketeered. Children learn under uncovered roofs in rain, storm and sun, sitting on bare floor. Graduates roam the streets without jobs. Our beautiful daughters and sisters are sold into second slavery as sex objects. Young able-bodied men take to kidnapping, armed robbery, Internet scams and otokoto rituals. Moneybags are celebrated, no matter the illicit sources of their wealth.
The church and the mosque are complicit in this societal degeneration. Morals, ethics, values recede into the abyss of historical oblivion. Prices of food have gone out of the roofs, leaving the poor prostrate and defeated. The tail now wags the dog, the leaders molest the people whose mandate they utilise. They laugh the people to scorn, exploit them, beat them, scourge them, impoverish them and misuse them. God, where, when, how and why did we find ourselves in this scandalous state of nadir, doldrums and national calamity? Nigeria at 59!!! A woman still crawling, flat-breasted, misused, dehumanised and degraded. There will still be sunshine at the end of the storm. Yes, a silver lining on a dark cloudy sky. God help us.
$9bn judgment debt: Is Nigeria in a cul-de-sac? (2)
Introduction
It was Dwight D. Eisenhower who once said in the Councils of Government that, we must guard against the acquisition of unwarranted influence, whether sought or unsought, through the military-industrial complex. He theorised that the potential for the disastrous rise of misplaced power exists and will persist. On this note, we shall, today, continue our discourse on the $9 billion judgement vexed issue that has become a national embarrassment.
Legal issues arising from the $9 billion judgement debt alleged discovery of “silver bullet” to shoot down $9.6bn P&ID claim and private international law (continues)
Proponents and supporters of this government claimed to have discovered a “silver bullet” to shoot down the $9 billion debt. They rely on “Section 13(2) of the Act, which provides that:(a) relief shall not be given against a State by way of injunction or order for specific performance or for the recovery of land or other property; and (b) the property of a State shall not be subject to any process for the enforcement of a judgment or arbitration award or, in an action in rem, for its arrest, detention or sale.”
They argue: “Pursuant to section 13 of the Act, state assets ‘shall not be subject to any process for the enforcement of a judgment or arbitration award or, in an action in rem, for [their] arrest, detention or sale’ unless the state has provided its written consent. For example, Gold Reserve Inc v. Venezuela [2016] EWHC 153 (Comm), finding that Venezuela had submitted to arbitration in writing by entering into a bilateral investment treaty [BIT] with Canada or the assets in question are ‘in use or intended for use for commercial purposes’ [section 13(2)-(4)]. These provisions apply in respect to states alone as defined in section 14 of the Act, and do not therefore extend to separate entities (see question 8).
“This provision is subject to sections 13(3) and 13(4) of the Act. Pursuant to section 13(3), a state may provide written consent to the grant of any relief against it. It follows that a state may consent to the grant of interim or injunctive relief against it; however, the mere submission to the jurisdiction of the UK courts does not constitute such consent.”
Taking a close look at the Gas Supply and Processing Agreement (GSPA), which the two parties to the contract entered into, it will be deduced that some foreign elements where introduced into the contract, thereby bringing in elements of Private International Law into the contract, aside from the fact that parties in the contract already introduced the foreign element into the contract by their involvement. Clause 20 of the GSPA provided (a) the agreement to be construed in accordance with the laws of Nigeria (b) in the event of a dispute over the interpretation or performance of the agreement, which cannot be resolved amicably, either party will serve on the other a notice of arbitration (c) the Arbitration award shall be final and binding upon the parties and (d) the venue of the arbitration shall be London, England or otherwise as agreed by the parties.”
From the above clause, it is crystal clear that the GSPA only stated that London, England, should serve as the forum convenience for resolving disputes amicably but never stated that UK laws should apply in interpreting the agreement; rather it went further to state that the agreement is to be construed in accordance with the laws of Nigeria. Consequently, the applicable law in the circumstances is Nigerian law, not “the UK law.”. This is the “silver bullet” the protagonists are claiming. But, is that the law? Let us take a look at certain concepts to arrive at a just opinion.
Nullus commodum capere potest de injuria sua propria (No one should be permitted to profit by his own wrong or default)
The above maxim is applicable in this particular case. The proposition is that a man will not be allowed to take advantage of his own wrong. This is no doubt a very salutary one and one which the court would wish to endorse. Most prominent people in government have argued that the agreement between the two parties was fraudulent and that the contract did not follow the right approval channels. Question: can the Federal Government of Nigeria be allowed to benefit from its own wrong or default or disobey an arbitral award on grounds of fraud or illegal approval of contract when it consented to the jurisdiction of the court and did not challenge the notice of arbitration, but instead commenced negotiation on the quantum of damages to be paid?
In F.B.N. Plc v. Songonuga (2007) 3 NWLR (Pt. 1021) 230 at 280 paras. B – D; 266 paras. B – E (CA), the Court of Appeal, Per. Garba J.C.A., succinctly put the position as follows:
“… Be that it may, it would be quite inequitable for the respondent, a lawyer conscious and fully aware or presumed to be, of provisions of the Act and its legal implications, willingly and willfully, eyes wide opened, to be allowed now to claim that what he did and caused the appellant to rely and act upon, was void. More inequitable for him is to claim any benefit from his own failure to discharge an obligation imposed by section 22 (1) of the Act on him yet to seek and obtain the consent of the Governor in his relationship with the appellant. The courts have consistently refused to allow people like the respondent to claim any benefits from their own deliberate acts of unfairness by trying to exploit or hide under any absurd technicalities there may be in the law. The senses and sensibilities of equity, fair play and fairness are always protected and enforced by the courts in all legal agreements or relationship freely entered into or created by the parties themselves. The duty to do so in this appeal could not be more compulsive.”
Similarly, in STANBIC IBTC BANK v. LONGTERM GLOBAL CAPITAL LTD & ORS (2018) LPELR-44053(CA), the intermediate court further held that:
“…The Appellants cannot in good conscience, equity and even in law be allowed to take advantage of their own wrong. I deprecate it as morally despicable. They cannot approbate and reprobate at the same time. See Sosan v. H.F.P. Eng. (Nig.) (2003) LPELR-7232 (CA). See also Kentus Chemical and Allied Products Ltd v. UBA Plc (2012) LPELR-9836 (CA); Buswell v. Goodwin (1971) 1 All ER 418.” Per GEORGEWILL, J.C.A. (Pp. 35-36, Paras. E-E)”.
Question: can the Nigerian government take advantage of its wrong to repudiate a contract in which an arbitral award has been made, with the government already negotiating the quantum of damages? I think not.
SETTING ASIDE AN ARBITRAL AWARD
Authorities no doubt abound in which Nigerian courts have pronounced that acts of misconduct could lead to the setting aside of an arbitral award. In the case of TRIANA LIMITED v. UNIVERSAL TRUST BANK PLC (2009) LPELR-8922(CA), the intermediate court imprimatured as follows:
“The word “misconduct” has not been defined in the Act or what would amount to misconduct on the part of an arbitrator to necessitate the setting aside of his award. But the Court is not without guidance. The apex court in Taylor Woodrow Nigeria Limited v. S.E.G.M.B.H. (Supra) having had recourse to the common law has determined what constitutes misconduct. Several instances have been listed though it cannot be said to be exhaustive. I think each case should be treated based on its peculiar facts to determine whether or not an arbitrator has misconducted himself.
(To be continued)
Thought for the week
“Strong government doesn’t mean simply military power or an efficient intelligence apparatus. Instead, it should mean effective, fair administration, in other words, good governance.”
(Raghuram Rajan)
