Muhammadu Buhari: His government may have found a silver bullet against P&ID’s $9.6b claim

The Buhari administration may have found a silver bullet to shoot down the $9.6billion world record claim against Nigeria’s assets by Irish company Process and Industrial Development(P&ID).

According to reports, the rock-solid defence is contained in a UK law, that gives immunity to Sovereign states. Going by the law, P&ID should not even have dragged Nigeria to any arbitration or a commercial court, to try to milk Nigeria of hard-earned revenue.

But first of all, Nigeria intends to file a stay-of-execution of the judgment at the end of the month when the UK courts resume and has opted not to negotiate any deal with P&ID.

Thereafter, the government will file an appeal based on the extant law of the United Kingdom.

UK’s State Immunity Act 1978 (the Act) bars UK courts from confiscating assets of a foreign state without the consent of that state, gives it a leeway in the matter.

In an illuminating article on the law published in March this year, Quinn Emanuel Urquhart & Sullivan LLP (the largest law firm in the world devoted solely to business litigation and arbitration, said the Act allows a written consent of a foreign state before the enforcement of a judgment which could lead to seizure of assets or freezing of accounts.

The article was titled “Sovereign Immunity in the United Kingdom—Lexology”

The law firm wrote: “Section 13(2) of the Act 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.

“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 (see, 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.”

According to The Nation, the decision by Nigeria to anchor its defence on this law, was taken at a meeting chaired by Vice President Yemi Osinbajo at the Presidential Villa in Abuja this week.

It was attended by Finance, Budget and National Planning Minister Zainab Ahmed; Minister of Justice Abubakar Malami (SAN); Minister of Information Lai Mohammed; and Minister of State for Petroleum Timipre Sylva.

Others are Minister of State for Niger Delta Affairs Festus Keyamo (SAN); Group Managing Director of Nigerian National Petroleum Corporation (NNPC) Mele Kyari; Acting Chairman of the Economic and Financial Crimes Commission (EFCC) Ibrahim Magu; and Governor of the Central Bank of Nigeria (CBN) Godwin Emefiele.

The Federal Government’s team, made up of many lawyers, met with an American lawyer alongside Mr. Bolaji Ayorinde (SAN), who has been central to the handling of the case with P&ID.