By Kolawole Ojebisi
Barring last-minute change of intention, former president Olusegun Obasanjo will today join the growing list of Nigerians testifying before the International Chamber of Commerce (ICC), Paris, France, in connection with a $2.3 billion arbitration proceedings filed against Nigeria by Sunrise Power.
Sunrise Power and Transmission Company had alleged breach of contract by the federal government over Mambilla Hydroelectric Power Project initiated under the administration of Olusegun Obasanjo.
Last week, the Tinubu administration denied forcing former president Muhammadu Buhari or any Nigerian to testify before ICC concerning the arbitration.
However, it was widely reported on Monday that both Obasanjo and former President Muhammadu Buhari were in Paris because of the case.
On Tuesday, the Chairman/CEO of Sunrise Power, Leno Adesanya, testified before the ICC in connection with the $2.3 billion arbitration proceedings his company filed against Nigeria. The Mambilla Hydroelectric Power Project is a protracted case.
Recall that Obasanjo, in an interview he granted in 2023, lambasted his former Minister of Power, Olu Agunloye, whom he accused of fraudulently awarding the contract to Sunrise in 2003 without any approval from either the Federal Executive Council(FEC) or the President of Nigeria as required by law and due process.
“When I was president, no minister had the power to approve more than N25 million without express presidential consent. It was impossible for Agunloye to commit my government to a $6 billion project without my permission and I did not give him any permission.
“If a commission of inquiry is set up today to investigate the matter, I am ready to testify. I do not even need to testify because all the records are there. I never approved it.
“When he presented his memo to the federal executive council (on May 21, 2003), I was surprised because he had previously discussed it with me and I had told him to jettison the idea, that I had other ideas on how the power sector would be restructured and funded.
“I told him as much at the council meeting and directed him to step down the memo. I find it surprising that Agunloye is now claiming he acted on behalf of Nigeria. If I knew he issued such a letter to Sunrise, I would have sacked him as minister during my second term. He would not have spent a day longer in office,” the former president said.
Reacting to Obasanjo’s claims, Agunloye had said the government was not compelled to pay any amount to Sunrise under the build, operate and transfer (BOT) agreement.
He said the arrangement remained as it was to be fully funded by the newly registered company, whose declared assets were worth less than $2,000 at the time.
Sunrise, on October 10, 2017, started the arbitration against Nigeria at the ICC, Paris, seeking a $2.354 billion award for “breach of contract” in relation to a 2003 agreement to construct the 3,050 megawatt plant in Mambilla, Taraba State, on a “build, operate and transfer” basis valued at $6 billion.
A former Minister of Power, Works and Housing, Babatunde Fashola, in 2017, had described Sunrise Power as a middleman.
The minister had said the Buhari administration was directly contracting the Engineering, Procurement and Construction (EPC) contractor, Sinohydro Corporation Limited, a Chinese firm, currently handling the project.
After several negotiations, a former Minister of Power, Sale Mamman, had, in 2020, reportedly said the parties had reached an out-of-court settlement of $200 million.
The court battle took a new turn when Sunrise later filed a $400 million compensation claim at the ICC against the government for breaching the new agreement.
The company had said the sum was to serve as an out-of-court settlement which the government allegedly failed to honour as it had agreed to pay in 14 days after it was signed by a former Attorney-General of the Federation and Minister of Justice, Abubakar Malami and Sale Mamman for the government and the Chairman/CEO of Sunrise Power, Leno Adesanya.
The company’s legal representative, Femi Falana, then filed a lawsuit at the International Court of Arbitration on May 11, demanding $400 million as overall claims, including penalties.
According to Sunrise in its claim document, the amount was to be paid “within 14 days” of the execution of the terms of the agreement on January 21, 2020, along with a 10 per cent penalty if there is a default in the settlement terms.
The company had also said it was agreed in the pact signed that it would be restored as the local partner for the current $5.8 billion Mambilla power project.
A follow-up on this showed that the pact was revised and the local partner condition was removed. The federal government later requested a review of the negotiation, citing the COVID-19 pandemic effects on the Nigerian economy.
