Malami: NGF, ALGON confirmed liability to consultants in Paris Club refund

• Says Fed Govt Was Involved In Court Case • Payment Commenced Since 2016

Attorney General and Minister of Justice, Abubakar Malami SAN, told select journalists in Abuja that the Nigeria Governors’ Forum (NGF) committed themselves to consent judgment delivered before the President Muhammadu Buhari administration. LEO SOBECHI was there.

The Nigeria Governors’ Forum said you did not act in the best interest of Nigeria on the issue of payment to some consultants from the Paris Club refund to the tune of $418million. What would you say about that?
Well I think the proper approach for a better understanding of the true position of things as far as the Paris Club refund issue is concerned, is to understand that the issue predates the administration of President Muhammadu Buhari.

Sometime, as far back as 2013, there was an engagement by the outgoing administration and the Nigeria Governors’ Forum of certain consultants that were engaged by the two groups for the purpose of recovering certain amounts of money relating to Paris Club refund.

These consultants have indeed delivered and fundamentally, they were not paid the fees for the services they claimed to have rendered. On account of that they approached the judicial system for the determination of their rights and indeed the enforcement of their fees.

Now in 2013, parties, I mean the outgoing and indeed the Governors’ Forum came together, agreed and submitted to a consent judgment by the court of law in 2013. That consent judgment is what gave rise to the liability in contention as we are talking today.

So, in 2017, 2019, the Federal Government was approached by these consultants for the purpose of payment of their respective professional fees; the Federal Government approached the NGF and ALGON and they collectively walked to the Federal Government and conceded to the position that the consultants have indeed provided the services and as such, they were ready and willing for the payment.

But, the point of interest arising therefore is that the Governors’ Forum and ALGON, walked up to the Federal Government conceding that payment should be deducted from their monies and then should be effected to the consultants.

Then, in 2016/2017, these deductions were carried out at the instance of the NGF and ALGON. That was the situation on the ground. But, when eventually these claims were made, the Federal Government, through the office of the Attorney General of the Federation (AGF) felt the amount that the NGF and ALGON agreed to be paid to these consultants were in fact a very huge amount of money. The Federal Government then became suspicious of what the Governors’ Forum and indeed ALGON were up to, taking into consideration that what was in contention was the services rendered.

So, the Federal Government wrote the Economic and Financial Crimes Commission (EFCC) and the Department of State Services (DSS) seeking the verification of the veracity and authenticity of the claim, including the judgment that gave rise to the claim.

The EFCC and DSS wrote to the office of the AGF confirming the liability, because the Federal Government was made a party to the suit that was instituted by the consultants. The implication of making the Federal Government a party, is that the Federal Government could as well be liable and that execution could be levied against the interest of the Federal Government.

So, on that note, the Federal Government took steps to approach the Governors’ Forum and ALGON for the purposes of having their take as far as their liability was concerned. I am happy to report that the governors as at 2017, individually wrote in confirmation of admission of liability and the same thing with ALGON.

So, the background is that one, there was a claim in respect of which the Federal Government was made a party in the consultants’ claim against the Governors’ Forum and ALGON. Two, the Federal Government took steps by way of verification of these claims and wrote to EFCC and DSS ordering background checks to ascertain that nothing funny was taking place among ALGON, the Governors’ Forum and the consultants, as far as these claims were concerned.

Three, when eventually such verification was confirmed, out of further abundance of caution, the Federal Government took steps to demand for confirmation in writing from ALGON and from the governors. The governors wrote individually to the effect that they were liable, so also ALGON, and eventually, this payment commenced as far back as 2016.

Now nothing untoward happened thereafter, until perhaps of recent, when the governors wrote, seeking to avoid kind of liability. The implication of that, taking into consideration that the Federal Government was indeed sued as a party, was that at the end of the day the liability will be placed exclusively at the door steps of the Federal Government, whereas in actual fact, this was a liability that was incurred by the Governors’ Forum, and which liability was admitted by the governors. This is a case in which respect the Governors’ Forum and ALGON conceded to judgment by way of submitting to a consent judgment before a court of law.

So what I am labouring to state in effect is that, one the engagement that gave rise to this liability was an engagement that was factored by ALGON and the Governors’ Forum. Secondly, arising from such liability by way of creating a contractual obligation, parties submitted to the jurisdiction of the court arising from case instituted by the consultants against the Governor’s Forum and ALGON and the parties submitted to the consent judgment.

Thirdly, even after a consent judgment was obtained in 2013, before the advent of this present administration, this government has taken it further by way of conducting due diligence to ascertain the liability and demanded for investigation from agencies of government, including EFCC and DSS and the claim of the consultants in respect of which the Governors’ Forum and ALGON had submitted to a consent judgment before a court of law, was ascertained and confirmed to be genuine.

Further, the governors have indeed provided a letter of commitment to the office of the AGF and the Federal Government that they were indeed liable, the same thing with ALGON.

Additionally, over and above all these, out of abundance of caution, payment was indeed effected over time without raising any objection on the part of ALGON and the NGF over time. So, it is indeed amazing that the governors are now belatedly, after having serviced the same claim for over a period of four to five years, turning round to raise objections in respect of the payment, even when one, they have consented on their own to a judgment, which was entered in 2013 before the Buhari administration came on board.

Two, they have been effecting periodic payment in respect of them same. Three, they have provided individual indemnity and commitment that his payment should be effected over time. So, I think those are the antecedents that are of interest as far as this matter is concerned.

But, for the office of the AGF, one thing that should be made clear is the fact that the responsibility of the Attorney General is to provide the necessary protection to the Federal Government. And I cannot be sitting here as the Attorney General and allow the Federal Government to be exposed to a third party liability, a liability incurred by ALGON and the Governors’ Forum and in respect of which they have submitted to a consent judgment, and for which they have provided an indemnity and a consent for such deductions to be made.

And of course, in respect of which deductions have been made over time without objection, only for them to now turn round to create a situation that will expose the Federal Government to vicarious liability, even when it was indeed their liability whereby by their own admission, by their own commitment, they have been servicing and they have conceded to.
Will you say the governors are just forum-shopping? How far has the P&ID case gone and what are the chances of Nigeria winning that case? This question arose against the background of another company, Sun Flower, that is already suing the Federal Government over the MoU of the Mambilla hydro electricity. What is the government doing about that?

Well, generally speaking, as I stated arising from my earlier submission, this is a government that is indeed being very cautious in whatever it does. This government covers the field in terms of due diligence as far as claims and counterclaims relating to MoU and any liability that is placed at its door step.

So, in essence, the government will do whatever it takes in terms of avoidance of liabilities generally. On the issue of forum shopping, truly it is the best word to characterize what the Governors’ Forum and ALGON is doing in the circumstance of the Paris Club arrangement. Why? Because, one, they have originally submitted to a court judgment.

Two, arising from the consent judgment, orders were made, inclusive of Garnishee orders and orders of mandamus. And then three, they have indeed conceded to the judgment by way of making periodic payments of the liability.

I think therefore, if, after all this they conceded to judgment in 2013, effecting periodic payments and associated submission to liability, the Governors’ Forum and indeed, ALGON turns round to approach the court, then it certainly is a case of forum-shopping, a clear case of abuse.

You cannot be submissive to a consent judgment, you cannot, arising from the consent judgment, be making payments of the liability, on account of which the consent judgment is entered, and then simply turn around to equally approach the court for the purpose of denial of liability, about 10 years thereafter.

This is a document that was entered in 2013 and then today, in 2021, someone is coming around to claim that he is denying liability, even when his opportunities for appeal, and privileges associated with the setting aside the judgment, where they were at no point exercised.

On the case of P&ID, you know, in in a nutshell, it has been a success story all through. This is a case in respect of which perhaps arbitral award around the sum of $10billion was made against the interest of the federal government and then nothing was done by the previous administration until after the right of the federal government to appeal against the judgment has elapsed.

And then the enforcement of judgment was being contemplated many years thereafter, which is unprecedented. The Federal Government instituted or filed an application for setting aside the enforcement.

And the first success recorded therefore was when the order was made for stay of enforcement of the judgment. And this is unprecedented, taking into consideration that even the time within which we’re expected to appeal have elapsed.

And then further, the court order that we should pay 200million pounds as a condition for stay of execution of the judgment against the interest of the federal government, its assets and economic interest.

But, then again, we challenge the order for the payment of the $200 million and that order, our challenge, our objection to fees, a deposit of physical cash was equally sustained, a second reason for celebration as far as the case is concerned.

Again, we equally requested, file an application seeking for the court to consider corruption, fraud, as the basis for procurement of the contract in its own right and then perhaps, misrepresentation arising from this fact, on account of which the arbitrary award was made.

Again, the Court granted us concession that we are entitled to press before it for its consideration, contentions relating to allegations of fraud and corruption. At the end of the day, we were accorded an opportunity, not only to open the case, but indeed, to stay execution against the interests of the Federal Government, not only to avoid the payment of 200 million cash, but indeed an opportunity to present a case of corruption and fraud. That case is now before the court for determination.

So in essence, arising from the multiple proceedings that have taken place in the court, arising from the multiple favourable orders and judgments granted,

I can tell you clearly, it is indeed a success story all through and the final hearing is coming in due course, in respect of which we will be accorded an opportunity to present a case of corruption, a case of fraud, for the consideration of the court, final determination of the case.

What is your relationship with these NGF and ALGON’s consultants, because NGF alleged that it suspects you have some special relationship with them?
Well, I’m a lawyer and not a contractor, neither am I a consultant. One thing of interest, if there is any insinuation or relationship, it will be placed on the doorstep of NGF and ALGON, who have overtime, first engaged the consultants, two conceded to a consent judgment, and three, arising from the consent judgment have been paying for the professional fees.

So, if there is any insinuation of relationship that can logically be made, it should be logically placed at the doorsteps of the governors and indeed the ALGON, who engaged them, conceded to a consent judgment and have been paying overtime.

For your information, remember it was a 2013 judgment even before Abubakar Malami was appointed the Attorney General of the Federation and even before the government of President Muhammadu Buhari came to be.

So, apparently, if you are looking for a relationship, the better point to place it is at the doorsteps of the governors, the ALGON, who had indeed demonstrated a clear understanding, both contractual and business wise.

They point to two things; one is that they asserted the speed at which this agreement was executed. Then secondly, they said the appeal, the Notice of Appeal, which were served, and you’ve been informed about appeals on some of these judgment, but they were ignored as they went on with payment,

If you are talking about speed, I think, an institution or perhaps an office of AGF, that had indeed refused to concede or, to advise the Federal Government to effect payment, but in essence, took steps to engage the EFCC and the DSS for the purposes of confirmation and verification of the authenticity of the judgment cannot be said in any way to be speedy in terms of submission

Also, in terms of perhaps advising the government to effect payment. So the idea of speed does not arise at all.
But, they said you ignored the appeals they made…

I stated earlier that the judgment in contention was a 2013 judgment and it was a consent judgment in which ALGON and the Governors’ Forum consented to a judgment.

So, what judgment are you talking about in 2021 against the background of the fact that they consented to the 2013 judgment and of the fact they have been effecting payment as far back as 2013, against the background of the fact that they have written in their right, under their respective hands, committing to the payment of this consultancy fees we are talking about.

So, I think it is logical for all to see that they were indeed, submissive and were indeed in agreement, and that they have also conceded and consented to a judgment that created the liability they are now complaining about.

How would you describe the action of the governors and ALGON?
Approbating. They have a probate, probated at a point in 2013 by way of submitting to judgment and then effecting payment over time. And in fact, among the claims relating to Paris Club that has been presented before the Federal Government over time, is a component relating to consultancy fees. So, what they are doing is as good as reprobating and approbating at the same time, conceding in 2013 and objecting in 2021.

So, would you say you were the target? And since the case is already in court with the NGF challenging the payment., don’t you think it is better to wait for the outcome of the judgment from the Federal High Court before going ahead with the payment?
Well, I am not in a position to state whether I am the target, but then, you can logically make your reductions. However, one thing you need to know is that the payment is not the Office of the Attorney General’s affair. So, as far as the payment is concerned, I state tat the office of the AGF is not involved in any way.

But, the fact remains that judgments are meant to be enforced and then you are not expected to be speculative, as far as the enforcement is concerned.

Then, in the case of P&ID. An award was made against Nigeria. We approached the court of law for the purpose of setting aside the enforcement proceedings. It was only when the proceedings were set aside that we can now have the required respite in terms of ensuring that no asset of the Federal Government is attached.

So the fact that they are in court, belatedly, again against the background that they have three months within which to appeal against the 2013 judgment was they kept slipping from 2013 until 2021 makes it illogical that they expect the Federal Government, or perhaps any institution of government faced with a judgment and order of the court, to await their belated approach to court, which is indeed forum-shopping.

You described that claims made by the NGF and ALGON were bogus and that that was why the Federal Government involved the EFCC and DSS to authenticate the project; what were they claiming and how much were they claiming?
Let me see if I can get the figures somewhere. The claim of the consultant was in the sum of $3,188,079,505.96, that is the claim that the Governor’s Forum and ALGON submitted to by way of consent judgment in court, $3billion claim.

ALGON and NGF submitted two in 2013 and that was what they had wanted the Federal Government after President Muhammadu Buhari, after it emerged, to pay without any recourse to due diligence.

That was what gave rise to the decision of the President Buhari administration to approach EFCC and DSS, directing them that a claim of $3billion is being made by consultants for services rendered. We now commissioned an investigation in respect thereof.

Yet, even with that claim, what did they do? The state governors wrote individually directing the Federal Government to effect payment of this amount. We have the letters at our disposal, perhaps copies could be made available to you after this session.

So, what we are saying in essence, is a self-induced problem arising from concession, arising from the consent, arising from agreement by the Governor’s Forum and agreement of ALGON