Mambilla: Sunrise promoter paid $500,000 to Atiku’s wife – ICC

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Ex-VP unfit to be president, must quit 2027 race – APC PCC

Atiku: Court didn’t find me guilty, APC trying to manufacture judgment

Tribunal accuses Malami of acting against Nigeria’s interest

Battle not over, my lawyers reviewing judgment, exploring legal options – Adesanya

How scandal unfolded according to court documents

Details have emerged at the International Chamber of Commerce (ICC) tribunal sitting in Paris on how a contractor transferred $500,000 to former Vice President Atiku Abubakar’s wife in 2003, a few months before the purported award of a phantom contract to his company.

Leno Adesanya, promoter of Sunrise Power and Transmission Company Limited, in his evidence before the tribunal, said the money was transferred to the account of Jennifer Douglas, a wife of Atiku at the time.

Although Adesanya claimed that the January 2003 transfer was part of a foreign-exchange transaction carried out for the former VP, the tribunal  noted   the ” close connection in time between the moment the USD 500,000 payment was made to the wife of Vice-President Abubakar on 30 January 2003 and the alleged award of the BOT contract to Sunrise on 22 May 2003.”

It also said that Adesanya did not produce documents showing the underlying naira payment, the exchange rate applied, instructions from Atiku or his aides, correspondence concerning the transaction, or any record establishing its commercial purpose.

The contract was the 3,960mw Mambila Hydroelectric Power Project in Taraba State for which Adesanya had approached the tribunal for a  $680 million settlement sum and interest from the Federal Government in respect of another arbitration in which it claimed over $2.7 billion in compensation and interest relating to disputes associated with the development of the project.

The tribunal also frowned at the behaviour of former Attorney General of the Federation and Justice, Abubakar Malami, during negotiations for settlement between the Federal Government and Sunrise.

It did not take kindly to what it called an inappropriate relationship between Malami and Adesanya, and accused the former minister of effectively negotiating for the company rather than the federal government when he altered the terms of a proposed $200million settlement that would have doubled Nigeria’s exposure to $400 million with interest accruing at 10 per cent per annum.

The All Progressives Congress (APC) Presidential Campaign Council (PCC) said yesterday that the revelations from the tribunal were fresh evidence that Atiku, who is flying the flag of the African Democratic Congress (ADC) in the 2027 presidential election,  “will compromise Nigeria’s best interests for personal, fiduciary gain” if he became president.

The party asked him to quit the race.

Atiku, however, dismissed the APC’s position on the ICC proceedings as a deliberate distortion.

He claimed that the tribunal did not find him guilty of any offence as insinuated by the ruling party.

Adesanya: $500,000 transferred  through my company

The tribunal, in its award, quoted Adesanya as confirming in his fourth witness statement that “I made a transfer of $500,000 to the Abubakars through my company China Castle Investments Ltd in early 2003.”

He claimed that the discussions on the transaction were oral and he was unable, after many years, to lay hands on any written exchanges that might once have existed on the transaction.

He could not get Atiku or Douglas to corroborate or deny his claims during the proceedings.

In the case of Atiku, he said the former VP was not disposed to getting drawn into a dispute with his former boss, President Olusegun Obasanjo, who testified for the Federal Government on the matter.

On Douglas, Adesanya was quoted as saying “she would not even pick my call,” even after telling the tribunal earlier that they were close friends.

The tribunal rejected Adesanya’s claim that the $500,000 was a foreign-exchange transfer for Atiku following his failure to produce corroborative evidence, and in view of inconsistencies in his testimony.

Tribunal: Malami  acted against Nigeria’s interest

The tribunal accused Malami of supplying President Muhammadu Buhari with incorrect information about the financial implications of the proposed settlement between the Federal Government and Sunrise.

It said the former minister kept pestering the late Buhari for presidential approval even after the president had expressly refused to give his consent.

Malami and the then Power Minister Saleh Mamman had signed an agreement on behalf of the federal government in January 2020 under which the government was to pay Sunrise  $200 million in one instalment with interest on unpaid sums to accrue at 10 per cent per annum, compounded annually.

A revised agreement signed two months later provided for payment of settlement in two instalments of $100 million each.

In the event of failure by Nigeria to fulfil its terms of the agreement, it would pay an additional $200 million as penalty, while interest would accrue on the outstanding amount at 10 per cent per annum compounded daily.

The tribunal said it could not  “discern any upside for Nigeria in the renegotiated terms and conditions,”   and declared that Malami “has not been negotiating on behalf of Nigeria when he insisted on a change of the terms and conditions of the settlement but for Sunrise.”

Malami’s deliberate conduct, it added, showed that he “was motivated by other incentive(s)”.

The tribunal therefore rejected the agreement, and declared that neither man had the authority or capacity to bind the Federal Government without presidential approval.

Besides, it said that the settlement agreement and its addendum were products of corruption and therefore unenforceable for violating Nigerian public policy.

The tribunal ordered Sunrise and Adesanya to reimburse Nigeria for $11.82 million in legal fees and $414,125 in arbitration costs. They are also to bear their own legal expenses.

The battle is not yet over, says Adesanya

For Adesanya, the battle is not over.

In his first reaction to the ICC arbitration, he said he was reviewing the ICC  decision for the purpose of determining the next line of action.

“The battle is not over. Our lawyers are currently reviewing the arbitration decision and will advise us on the appropriate next steps,” he said.

“We respect the arbitration process and the decision of the tribunal, but we are carefully studying the award, including its findings, reasoning and the implications for the parties.

“Until our legal team has completed its review, it would be premature to comment extensively on the decision or the issues arising from it.

“Sunrise remains committed to protecting its rights and interests in relation to the Mambilla Hydroelectric Power Project. We will consider all lawful options available to us based on the advice of our lawyers.

“We also remain hopeful that the long-running issues surrounding the project can ultimately be resolved in a manner that protects the interests of all parties and supports the realisation of the enormous potential of the Mambilla project for Nigeria’s power sector.

“We will make further comments when our legal team has concluded its review and advised us on the appropriate course of action.”

Atiku unfit for Nigeria’s presidency, says APC PCC

The APC’s presidential campaign council (PCC) said, in its reaction to the ICC judgement, that based on what transpired at the tribunal, Alhaji Atiku “has once again proven he will compromise Nigeria’s best interests for personal, fiduciary gain.”

“By collecting $500,000 from Leno Adesanya to approve a Build-Operate-Transfer contract to a company with no scintilla of experience in hydro power generation, Atiku has proven he is one of the enablers of local and international predatory and exploitative entities out to defraud our country,” the Council said in a statement by its spokesman, Dele Alake.

He said: “Hearings in the arbitration filed by Sunrise Power and Transmission Company Ltd (Sunrise) and Leno Adesanya over the stalled 3960mw Mambila Hydroelectric Power Project in Taraba State revealed that Abubakar and former power minister Olu Agunloye worked in cahoots to sign an illegal power contract with Sunrise.

“The backdoor signing of the contract in the dying days of then President Olusegun Obasanjo’s first term, when Atiku wielded enormous power, put Nigeria in serious financial peril, despite President Obasanjo’s objection and reservations at the Federal Executive Council meeting.

“Atiku’s greed, however, propelled him to disobey the council and President Obasanjo, months after Leno Adesanya, through an offshore account, China Castle Investment, wired $500,000 to the US Citibank account of his now-divorced wife, Jennifer Douglas. The money arrived in tranches, raising red flags at Citibank and in the United States. The wired money and other suspicious transfers totalling $40 million surfaced in a US Senate investigation into Atiku and other corrupt leaders. In the US Senate report titled Keeping Foreign Corruption out of the United States: Four Case Histories, Jennifer said her husband sent the money. She said she was not familiar with the offshore company that wired the money.

“At the hearing in Paris, Atiku, to avoid embarrassment, chose to stay away to give evidence in support of Sunrise and Leno Adesanya’s specious claim that the $500,000 was a foreign exchange transaction. Although the Tribunal requested Atiku’s witness statement, Adesanya shielded Atiku and Jennifer Douglas by lying. In contrast, President Olusegun Obasanjo and President Muhammadu Buhari went to Paris to defend Nigeria and help stave off a liability that our country can ill-afford to redeem in these lean times.

“The APC Campaign calls on Abubakar Atiku to do himself a rare honour by bowing out of the presidential race, as the $500,000 is just the tip of the iceberg of the revelations to come about his monumental corruption.

“The people of Taraba State should also note that the ADC candidate, who plans to pull wool over our eyes and bamboozle his way to the presidency as a pro-petrol-subsidy candidate, is one of the people responsible for the stalled kick-off of what would have been the biggest hydro-power project in Nigeria, with many economic spin-offs for the people of the state.”

Atiku to APC: Tribunal never found me guilty

Alhaji Atiku rejected the APC’s position on the ICC judgement.

Speaking through his Senior Special Assistant on Public Communication, Phrank Shaibu, the ADC presidential candidate said the APC PCC was deliberately distorting the outcome of the Mambilla arbitration, “amputated its legal meaning, stuffed the gaps with political propaganda” and presented the result to Nigerians as a corruption verdict against him when no such verdict was delivered.

According to him, if the tribunal had wanted to find that the $500,000 was a bribe paid to him, or that he abused his office to procure the contract, “it could have said so plainly.”

He claimed that the APC’s distortion rested on “a false and intellectually lazy assumption” that because he served as Vice President in the Obasanjo administration, every action taken by that government must automatically be attributed to him.

He added: “The APC cannot manufacture the missing finding simply because the actual award does not provide the political conclusion it desperately wants.

“I was not a party to the arbitration, and I did not testify before the tribunal. The reported contents of the award do not establish that the tribunal summoned me, ordered me to testify or found that I disobeyed any directive to appear.”

He noted that while former Presidents Olusegun Obasanjo and Muhammadu Buhari, along with former ministers Babatunde Fashola and Suleiman Adamu, participated in Nigeria’s defence, their appearance could not reasonably be transformed into evidence that he himself had been summoned and refused to appear.

He said that until the APC produces the portions of the award it claims support its accusation, it should stop “dressing campaign allegations in the robes of an international tribunal”.

“An allegation is not a finding. Suspicion is not proof. The rejection of one man’s explanation is not the conviction of another man. And no amount of political repetition can write into an arbitral award a verdict that the tribunal itself did not deliver”, he added.

Genesis of a scandal

The tribunal recalled how the Mambilla Hydroelectric Power Project was conceived as one of the largest hydroelectric power projects in Nigeria with a planned capacity of 3,050 MW in 1982 during the tenure of President Shehu Shagari.

Feasibility studies for the Mambilla Project were carried out between 1981 and 1985 and revealed that the hydroelectric potential of the Mambilla Plateau within the Donga River Basin amounts to 3,960 MW.

It said that on 12 September 2001, Sunrise and North China Power Engineering (Beijing) Co. Ltd (“NCPEC”) had a meeting with the National Electric Power Authority (“NEPA”), during which they expressed their interest in participating in the Mambilla Project.

Sunrise was later incorporated in Nigeria on 9 October 2001 as a private company limited by shares for the purpose of inter alia, “sourc[ing] for and identifying investment opportunities primarily in the power sector, in addition to other sectors such as the oil and gas, and solid minerals sectors.”

Continuing, it said: “ The company’s initially issued share capital comprised 1,000,000 ordinary shares. Among its initial subscribers were Mr. Adesanya and his wife, Ms. Ibironke Adesanya, each of whom held 125,000 ordinary shares, with the remaining 750,000 ordinary shares held by Lenoil Holdings Ltd (another company directed by Mr. Adesanya).

“ On 15 October 2001, a meeting took place between NCPEC and Lenoil Holdings, during which various projects in the power sector were discussed, including the Mambilla Project.

“ On 18 October 2001, Sunrise sent letters to President Obasanjo and Vice-President Alhaji Atiku Abubakar informing them of the interest of Sunrise and NCPEC in developing the Mambilla Project.

“ On 13 November 2001, Sunrise and NCPEC met with Vice-President Abubakar and his team. During that meeting, the Vice-President stated that the cost of the Mambilla Project was estimated at USD 6 billion, and Sunrise and NCPEC reaffirmed their interest in the Project. 67

“ On 12 December 2001, Sunrise in partnership with NCPEC, submitted a proposal to the Technical Committee of the Federal Ministry of Power and Steel for the construction of the Mambilla Project. In the proposal, Sunrise sought the Government’s participation in the project ownership, stating that such involvement would “secure our foreign partner’s confidence to invest over USD 4,000,000,000” and requested a waiver of the mandatory USD 500,000 processing fee required by NEPA for the application. Sunrise added that the Project was expected to stimulate economic growth in Nigeria and to improve living standards.

“In early January 2002, Sunrise was invited by President Obasanjo and the then Federal Minister of Power and Steel, Dr. Olusegun Agagu, for preliminary discussions about the Mambilla Project, which took place on 21 and 24 January 2002.

“Further to those meetings, on 1 March 2002, Minister Agagu informed Sunrise that the Mambilla Project was to be financed through private funding and that the Government was looking for “a minority share of not more than 25%.” The Minister further indicated that a first tranche of USD 100,000 of the mandatory USD 500,000 processing fee was expected to be put in escrow to cover the one-time non-refundable fee for consultancy services.

“ On 4 July 2002, a delegation of the Nigerian Government went on an official visit to China. During this visit, Junior Minister of Power and Steel, Mr Aliyu, met with representatives of NCPEC to discuss various electric power projects in Nigeria, including the Mambilla Project, the value of which was then estimated at USD 4.5 billion to realise 2600 MW in Phase I. On that occasion, a Memorandum of Understanding on Cooperation on Electric Power Projects was executed by the Nigerian Minister of Power and Steel, Junior Minister Aliyu, and the President of NCPEC.

“ On 27 August 2002, the Federal Minister of Power and Steel, Dr. Agagu, provided Sunrise with the “Principal Terms and Conditions” for the Mambilla Project, which were completed and returned by Sunrise on 24 September 2002.

“ Around December 2002”, Dr. Olusegun Agagu resigned as Minister of Power and Steel to contest the election for office of Governor of Ondo State in the 2003 general elections and was succeeded by Dr. Olu Agunloye.

“ On 9 December 2002, Sunrise was invited by the Ministry of Power and Steel to a meeting scheduled to take place on 15 January 2003 to discuss and agree on the ‘Principal Terms and Conditions’ for the execution of the Mambilla Project.

“On 15 or 16 January 2003, Sunrise presented its tender for the Mambilla Project to the Technical Committee of the Ministry of Power and Steel (the “Technical Committee”), which comprised representatives of the Federal Ministry of Power and Steel, the Federal Ministry of Water Resources, the Federal Ministry of Finance, the Debt Management Office, the Federal Inland Revenue Service and the National Electric Power Authority.

“ On 30 January 2003, Mr. Adesanya transferred an amount of USD 500,000 to Ms. Jennifer Douglas Abubakar, the wife of then Vice-President Atiku Abubakar, through one of his companies, called China Castle Investments Ltd:

“It is Sunrise and Mr. Adesanya’s case that this payment to the wife of Vice-President Abubakar constituted a foreign exchange transaction that Mr. Adesanya executed for Vice-President Abubakar.

“On 12 March 2003, the Technical Committee issued the ‘Report of the Technical Committee on the Completion of Mambilla 3960MW Hydroelectric Power Project,’ which records that seven international construction companies had expressed interest in the Mambilla Project and had been invited to submit detailed proposals. However, only four companies ultimately submitted proposals: Tafag Nigeria Limited, Lemna International, Sunrise and Propel Consortium. In accordance with the established bidding procedure, the Technical Committee resolved as follows:

“ On 7 April 2003, the then Federal Minister of Power and Steel, Dr. Olu Agunloye, wrote to President Obasanjo seeking his approval for (i) the issuance of a letter of comfort to Sunrise for the construction of the Mambilla Project; (ii) the commencement of negotiations with Sunrise and/or other financiers regarding the source from which, and the structure in which, the Government’s 25% equity participation would be funded; and (iii) the appointment of technical consultants for the Project. In a handwritten note dated 9 April 2003, President Obasanjo stated that he had no objection to the request of Minister Agunloye but instructed him to bring a memorandum on the issue for deliberation by the Federal Executive Council (the “FEC”).

“ On 19 April 2003, President Obasanjo was re-elected as the President of Nigeria for a second term that would start at the end of May 2003.

“ On 9 May 2003, Sunrise sent a letter to Minister Agunloye to inform him of its review of reports of multiple studies undertaken by various consultants on NEPA Power System Development, emphasising the role and advantages of NEPA for the Mambilla Project.

“ Following the handwritten directive of President Obasanjo on 9 April 2003, Minister Agunloye submitted a memorandum dated 15 May 2003 to the FEC, seeking approval to sign a Build, Operate and Transfer agreement for the construction of the Mambilla Project with the consortium of Sunrise and North China Power Group.

“ On 21 May 2003, the last FEC meeting of President Obasanjo’s first term took place. At that meeting, the FEC discussed Minister Agunloye’s note. President Obasanjo reiterated that the establishment of new power plants should be conducted on a competitive basis. He further stated that ‘a law needed to be put in place for the deregulation, in particular on the issue of privatisation of the Power sector’ and that ‘the project needed proper preparation in view of the long gestation period required to actualise it’. The FEC subsequently resolved as follows: The Council:

(1) Agreed that the memorandum should be withdrawn.

(2) Directed the Minister of Power and Steel to invite more proposals with a view to engaging Investors In constructive negotiations and explore various investment options, including zero to not more than 25% equity participation by the Federal Government.

“The next day, on 22 May 2003, Minister Agunloye sent a letter to Sunrise stating that:

“I am pleased to convey to your company the approval of the Government of the Federal Republic of Nigeria for the construction of the 3,960MW Mambilla Hydroelectric Power Station on a Build, Operate and Transfer contract basis at a provisional sum of US$6,000,000,000 (Six billion United States Dollars).

“Minister Agunloye added the following conditions to the award of the Mambilla Project to Sunrise:

(i) the duration of the BOT Contract shall be determined through negotiations, with a term of either 30 or 40 years;

(ii) the tariff shall not exceed USD 2.54 per kWh, or such other rate as may be determined by the National Electric Regulation Commission;

(iii) eventual Government equity participation shall range from 0% to a maximum of 10%;

(iv) the initial capital outlay of the hydroelectric project shall be accurately determined in a form acceptable to all parties in order to ascertain the extent of equity of the Government, where necessary; and

(v) in the event of non-zero equity participation by the Government, a special purpose company shall be incorporated for the management and operation of the hydroelectric project.

“ Lastly, Minister Agunloye informed Sunrise that the Ministry of Power and Steel had ‘set aside the sum of N6.0 billion (six billion Naira only) for the take-off of this project, especially towards consultancy services and preliminary engineering, environmental impact assessment and BOT technical-feasibility studies’ and requested confirmation from Sunrise of its acceptance of the contract within seven days of receipt of the letter.

“ By letter of 26 May 2003, Sunrise accepted the award of the BOT contract for the Mambilla Project, including the conditions of the award set forth in Minister Agunloye’s letter of 22 May 2003.93 Sunrise and Mr. Adesanya refer to the exchange of letters of 22 and 26 May 2003 as the ‘2003 BOT Contract’.

“ On that same day, Minister Agunloye also wrote to one of the other contenders for the Mambilla Project, Tafag Nigeria Limited, to invite it ‘for further negotiations and clarification on the Project,” specifically with respect to the “Federal Government equity participation in the project, initial outlay of capital, provision of consultancy and private sector involvement. “94 Tafag Nigeria Limited was further invited to liaise with the Director of Power to schedule a meeting before mid-June 2003. Africans& Diaspora

“ Three days later, on 29 May 2003, President Obasanjo was sworn in as President for his second term in office. In the second government of President Obasanjo, Mr. Liyel Imoke was appointed as the new Minister of Power and Steel. He took office in July 2003.95

“ On 20 August 2003, Sunrise wrote to the newly appointed Minister of Power and Steel, Mr. Liyel Imoke, requesting the disbursement of USD 45,000,000, from the six billion Naira that had been reserved by the Ministry for ‘the first phase of the development cost’ of the Mambilla Project, thereby referring to the 22 May 2003 letter of the former Minister of Power and Steel, Dr. Agunloye.

“ Also on 20 August 2003, Sunrise, NCPEC and Sinohydro Corporation entered into a consortium agreement for the Mambilla Project.

“On 3 September 2003, Minister Imoke responded to Sunrise’s letter of 20 August 2003 that “the Federal Executive Council did not approve the Memorandum recommending Sunrise for the Mambilla Project. In addition, Minister Imoke informed Sunrise that:

“In line with the directives of the Federal Executive Council, the Federal Ministry of Power and Steel is to revisit the development of the project. Fresh documentation will be made available to all prospective developers in due course. It is expected that the new report will be available in four to six months’ time. In the light of the above, you are advised to tender for the project when it is advertised.

“ On 6 October 2003, Mr. Adesanya wrote to President Obasanjo on behalf of Sunrise to request an appointment to discuss the Mambilla Project. 100

“ On 20 November 2003, Minister Imoke met with Mr. Adesanya and his counsel. During this meeting, Minister Imoke reiterated that the FEC had not approved the award of any contract to Sunrise and that the ‘Government does not want to work with an inconclusive feasibility study that was prepared in 1985.”

The Nation