Why I didn’t testify in Sunrise Power, Nigeria arbitration hearing in France – Aondoakaa

A former Attorney General of the Federation and Minister of Justice, Michael Aondoakaa, has explained his decision not to testify in the ongoing arbitration proceedings between Sunrise Power and Transmission Company Ltd and the Federal Government of Nigeria.

The arbitration proceedings are ongoing at the International Chamber of Commerce (ICC), Pars, France.

Mr Aondoakaa said he was neither intimidated nor pressured by the government to withhold his testimony in the high-profile legal dispute as claimed in media reports.

Some reports had said Mr Aondoakaa suddenly left Paris, France, after filing a witness statement in support of Sunrise, claiming that he was summoned back to Nigeria by President Bola Tinubu.

The report described the overall strategy of the Sunrise team to allege witness intimidation by the Nigerian government and secure the sympathy of the tribunal members.

Reason for refusing to testify

Mr Aondoakaa described the reporting attributing his decision not to testify in the case to the government’s intimidation as “false and misleading.”

“I hereby state categorically that the said narrative, as contained in the said viral reports on the social media space, is false and does not in any way reflect the true state of the matter,” he stated in a press release on Monday.

According to him, the decision not to testify was purely personal and voluntary.

“I hereby state categorically that at no time whatsoever was I ever approached by any official or representative of the Federal Government of Nigeria or any other person whatsoever on the issue of the Sunrise Power Arbitration, neither was I at any time or in any way or in any manner intimidated by any person or government official with regards to the said arbitration as insinuated in the said viral publications” Mr Aondoakaa stated/

The former AGF explained that his witness statement was initially prepared in response to references made to him during the arbitration proceedings. However, he later reconsidered his involvement after reviewing the broader context of the case.

“Since no evidence was presented to the tribunal regarding the references to my person, and considering that the matter involves several former Attorneys General, I believe my testimony is not crucial to the case,” he stated.

Without giving details, Mr Aondoakaa said that paragraphs 165 and 166 of the statement of defence of the Federal Republic of Nigeria (FRN) contained unfounded allegations against him.

Mr Aondoakaa said he did not testify to avoid misleading the tribunal, adding that his testimony would not have provided a conclusive position on the dispute.

The former Attorney General also said that his clarification was necessary to prevent the public from being misled by inaccurate media reports.

“I feel it is important to set the records straight so that the public is not swayed by erroneous narratives being circulated,” he added.

Background

The legal dispute between Sunrise Power and Transmission Company Ltd and the Federal Government of Nigeria revolves around the controversial contract for the construction of the 3,050-megawatt Mambilla Hydropower Project in Taraba State.

The dispute began on 10 October 2017, when Sunrise Power filed an arbitration case against Nigeria, seeking $2.354 billion in damages for an alleged breach of a 2003 agreement. The original deal granted the company exclusive rights to execute the power project under a Build, Operate, and Transfer (BOT) arrangement.

In its claim, Sunrise Power argued that the Nigerian government violated the agreement by engaging Sinohydro Corporation Limited, a Chinese firm, to take over the project. As a result, Sunrise Power also included Sinohydro as a party to the arbitration proceedings.

To resolve the dispute, the Nigerian government entered into a settlement agreement with Sunrise Power on 21 January 2020. Under the terms of the agreement, the government committed to paying the company $200 million within 14 days of signing, along with a 10 per cent penalty in case of default.

Additionally, the deal reinstated Sunrise Power as the local content partner for the hydropower project, valued at $5.8 billion.

The settlement agreement was signed on behalf of the federal government by the then Attorney General of the Federation, Abubakar Malamii, and the former Minister of Power, Sale Mamman.

Representing Sunrise Power, its Chairman and CEO, Leno Adesanya, endorsed the agreement. This settlement was intended to facilitate the withdrawal of the arbitration case at the International Chamber of Commerce (ICC).

However, the government failed to keep to the agreement because the China Exim Bank, which is expected to provide 85 per cent of the joint funding with the federal government for the Mambilla project, had insisted on compliance with due process and terms of the November 2017 engineering, procurement and construction (EPC) contract signed with the partners before releasing the funds.

As a result of the failure of the federal government to fulfil its financial obligation of $200 million to Sunrise Power, Femi Falana, the company’s lawyer, filed a fresh lawsuit at arbitration court on 11 May 2021 demanding $400 million.