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The Federal High Court in Abuja has ordered the Economic and Financial Crimes Commission (EFCC) to immediately remove Leno Adesanya, the promoter of Sunrise Power and Transmission Ltd, from its wanted list in connection with any criminal allegations associated with the $6 billion Mambilla hydropower contract.
Justice Inyang Ekwo issued the judgment on Monday, September 23, 2024, in a suit filed by Adesanya’s lawyer, M.S. Diri, SAN, against the EFCC, the Federal Ministry of Power and Steel, the Federal Government of Nigeria, and the Attorney General of the Federation.
The EFCC had declared Adesanya wanted for “an alleged case of conspiracy and corrupt offer to public officers” related to the Mambilla project.
However, the applicant’s lawyer, Diri, sought a perpetual injunction restraining the EFCC from further investigating, inviting, or publishing his client’s name as a wanted person over the Mambilla Hydroelectric Power Project, citing a pending case at the International Chamber of Commerce Court of Arbitration in Paris.
What Transpired in Court
During the proceedings, the plaintiffs asked the court to determine the propriety of the EFCC’s powers to investigate the commercial transaction between his clients, the federal government, and the Ministry of Power.
Diri argued that Adesanya, seeking to ensure sustainable power in Nigeria, proposed constructing the Mambilla Hydroelectric Project through Sunrise as the special purpose vehicle to drive the project.
He noted that Sunrise and its Chinese partners, North China Power and China Hydroelectric companies, held various meetings in China with three Power Ministers regarding the Zungeru and Mambilla projects.
He submitted that in 2005 and 2006, ex-President Obasanjo approved financial negotiations for the project, but to date, no funds have been disbursed by the federal government to the plaintiffs regarding the contract.
He said in an effort to amicably resolve the issues concerning the project, the company wrote letters to the Ministry of Power, leading to meetings between his clients and the executive branch of government.
“Following these, the federal government agreed to pay the second plaintiff the sum of $200 million within 14 days of executing the Terms of Agreement, and failure to do so would trigger the commencement of 10% compound interest per annum. As a result of the Terms of Settlement, the arbitration in Case No. 23211 was withdrawn.”
He added that by a letter dated April 22, 2020, rather than honoring the agreement, the federal government wrote through the Attorney General seeking a review of the terms.
“ Consequently, the second plaintiff instituted fresh arbitral proceedings: Sunrise Power and Transmission Company Limited v. Federal Government of Nigeria – ICC Case No: 26260/SPN/AB/CPB (Exhibits D and E),” Diri added.
He stated that the arbitral proceeding had been scheduled for virtual hearing on March 22, 2024, but despite the pending case, the federal government and its security agencies, including the EFCC, have sought to criminalize and scandalize the Mambilla Project, aiming to evade their legal contractual obligations.
In response, the EFCC legal team argued that evidence of criminal activity was established against the plaintiffs during the investigation, leading to charges being framed in a high court.
“On December 14, 2023, a Warrant of Arrest was issued against Adesanya to ensure his presence in court,” the EFCC team submitted.
The EFCC also denied being used by the federal government or any other entity to witch-hunt or intimidate the plaintiffs, emphasizing that the investigation and prosecution are related to the contractual award for the Mambilla project without Presidential and Federal Executive Council approval.
What the Judge Said
In delivering judgment on Monday, Justice Ekwo held that since the Ministry of Power has contested the claims of the plaintiffs and has counterclaimed against them at the International Chamber of Commerce Court of Arbitration, the sanctity of the arbitral proceedings must be respected and protected.
He stated that the court was focused on safeguarding the integrity of the arbitral proceedings based on the United Nations Conventions on international dispute resolutions, which Nigeria is not only a signatory to but has also domesticated.
He stressed that the Ministry of Power must not be seen as a territory where international commercial transactions are unsafe and where municipal laws and agencies can be used against investors in case of disputes.
Ekwo noted that Sunrise had instituted fresh arbitral proceedings against the Federal Government of Nigeria, which are ongoing.
He agreed with the EFCC’s argument that fundamental rights provided by the Constitution are not absolute but added that this assertion does not serve as a defense against violations of fundamental rights that do not conform to constitutional provisions.
The judge further held that regarding the EFCC’s publication of the name and photograph of the first plaintiff as a “wanted person” on its website, he did not find any valid defense from the agency.
He subsequently declared that the EFCC is not legally entitled to investigate, resolve, or prosecute the contractual dispute between Sunrise and the Ministry of Power and the Federal Government, which is pending before the International Chamber of Commerce Court of Arbitration in Paris, under ICC Case Reference No. 26260/SPN/AB/CPB.
“An order is hereby made quashing, setting aside, and prohibiting the publication of the first plaintiff as a wanted person or threatening to prosecute the plaintiffs by the EFCC over the Mambilla Hydroelectric Power Project, pending the determination of the contractual dispute between the second plaintiff and the second and third defendants, which is pending before the International Chamber of Commerce Court of Arbitration in Paris, under ICC Case Reference No. 26260/SPN/AB/CPB, where the second and third defendants have joined issues.
“An order of mandatory injunction is hereby made directing and compelling the EFCC, whether by itself or through its officers, agents, servants, or any other means, to immediately take down, delete, and remove the name and photograph of the first plaintiff as a ‘wanted person’ from its website: https://www.efcc.gov.ng and all other social media platforms and notice boards; and to remove all other negative content concerning or relating to the first plaintiff in connection with any criminal allegations,” he said.
What You Should Know
The EFCC is prosecuting Olu Agunloye, a former Minister of Power and Steel, in separate court proceedings regarding alleged $6 billion Mambilla hydropower contract.
The EFCC alleges that Agunloye “corruptly received the sum of N3,600,000.00” through his Guaranty Trust Bank account no. 0022530926 from Sunrise Power and Transmission Company Limited (SPTCL) and Leno Adesanya for approving the Mambilla Hydroelectric Power Station project.
English (US) ·