LENO Adesanya, promoter of Sunrise Power and Transmission Company Limited, has told an international arbitration tribunal that the $500,000 he transferred to Jennifer Douglas, the now former wife of ex-Vice-President Atiku Abubakar, in January 2003 was part of a foreign-exchange transaction carried out for Atiku.
News Point Nigeria reports that the payment was made on January 30, 2003 — less than four months before Sunrise was purportedly awarded a build-operate-transfer contract for the Mambilla hydropower project — through China Castle Investments Limited, an offshore company controlled by Adesanya.
Details of the transaction and Adesanya’s explanation are contained in the final award issued by a three-member International Chamber of Commerce (ICC) tribunal in the arbitration between Sunrise and the Federal Republic of Nigeria, reviewed by TheCable.
The tribunal rejected Sunrise’s claims against Nigeria and ordered the company and Adesanya to reimburse the country for most of the legal costs it incurred in the proceedings.
Douglas was a central figure in the corruption and money laundering investigation that linked Atiku to William Jefferson, a convicted former US congressman.
Atiku has consistently denied any wrongdoing in connection with the case.
This newspaper has contacted Paul Ibe, Atiku’s media adviser, and Phrank Shaibu, his senior special assistant on public communication, for comments.
During the arbitration, Nigeria alleged that the $500,000 transfer to Douglas was connected to the disputed award of the Mambilla contract.
Sunrise and Adesanya denied that allegation, maintaining that the payment had nothing to do with the project.
Adesanya said he had operated a bureau de change business through Moneyline Ventures Limited and that the money sent to Douglas’s Citibank account in the United States represented dollars purchased for Atiku with naira.
“I confirm that I made a transfer of $500,000 to the Abubakars through my company China Castle Investments Ltd in early 2003,” Adesanya said in his fourth witness statement, according to the award.
Under cross-examination, he also expressly acknowledged transferring the money to Douglas.
However, the tribunal said Adesanya did not produce documents showing the underlying naira payment, the exchange rate applied, instructions from Atiku or his aides, correspondence concerning the transaction, or any record establishing its commercial purpose.
Adesanya said the discussions relating to the transaction were oral and that, more than two decades later, he no longer had access to any written exchanges that might once have existed.
Neither Atiku nor Douglas gave evidence in the arbitration.
The tribunal said Sunrise and Adesanya did not submit a witness statement or declaration from either of them to corroborate the foreign-exchange explanation.
According to the award, Adesanya said he tried to secure Atiku’s testimony but the former vice-president was reluctant to become involved in proceedings concerning former President Olusegun Obasanjo. He said Atiku remained an opposition politician and did not wish to be drawn into a dispute involving the former president.
Adesanya initially suggested that Atiku, through his lawyers, had confirmed that the payment was a foreign-exchange transaction. During cross-examination, however, he said the explanation had been relayed to him by “Dr Ndukwe”, whom he identified as Atiku’s medical doctor, while a later confirmation came through lawyers.
Pressed on whether the confirmation actually originated from Atiku, Adesanya described that as his “logical assumption”, saying he did not believe Atiku’s lawyers would have supplied the information without consulting him.
The tribunal treated the account cautiously, noting that Adesanya produced no correspondence, telephone records or other evidence of his alleged contacts with Atiku’s counsel, Ndukwe or the former vice-president’s aides.
Adesanya also offered an explanation for his inability to obtain evidence from Douglas.
During the hearing, he said she and Atiku had gone through a difficult divorce and that she had fallen out with him because he opposed the separation and supported Atiku and another wife.
“She would not even pick my call,” Adesanya was quoted as saying.
The tribunal observed that this account conflicted with his fourth witness statement, in which he had said he remained friends with Douglas. He had also described her as a close friend and his first girlfriend in high school.
The award additionally referred to a 2010 report of the United States Senate Permanent Subcommittee on Investigations, which examined offshore transfers into Douglas’s US accounts. The report said that, as banks questioned the payments, she maintained that the funds came from her husband and professed little familiarity with the offshore companies that transmitted them.
The tribunal said the absence of corroborating evidence, together with the inconsistencies in Adesanya’s testimony, meant it could not accept his explanation that the $500,000 was a foreign-exchange transfer for Atiku.
It also found that Adesanya failed to prove that Moneyline held a bureau de change licence at the time. Although he offered during the hearing to obtain the licence from his company secretary, no copy was subsequently placed before the tribunal.
The tribunal said that even proof of a Moneyline licence would not have resolved the issue because the money was transferred by China Castle, not Moneyline. Adesanya accepted under cross-examination that China Castle was not licensed to conduct foreign-exchange transactions and that such transactions did not fall within its stated corporate purposes.
The tribunal examined the payment against the background of negotiations for the Mambilla project, which had started nearly two years earlier.
On September 12, 2001, Sunrise and North China Power Engineering Company met officials of the National Electric Power Authority and expressed an interest in participating in the project.
Sunrise was incorporated in Nigeria on October 9, 2001, to identify investment opportunities principally in the power sector. Adesanya, his wife and Lenoil Holdings Limited, another company associated with him, were its initial shareholders.
Six days after the incorporation, North China Power Engineering Company and Lenoil Holdings met to discuss power-sector projects, including Mambilla.
On October 18, Sunrise wrote separately to Obasanjo and Atiku, informing them of its interest, with its Chinese partner, in developing the hydropower project.
Atiku and his team met representatives of Sunrise and the Chinese company on November 13.
According to the minutes cited by the tribunal, the then vice-president said the project was expected to cost about $6 billion, while the companies reaffirmed their interest in developing it.
Sunrise and the Chinese firm submitted a proposal to the technical committee of the federal ministry of power and steel on December 12, 2001. Sunrise sought government participation in the ownership of the project, arguing that it would strengthen the confidence of its foreign partner to invest more than $4 billion.
The company also requested a waiver of the mandatory $500,000 processing fee required by NEPA.
In January 2002, Obasanjo and Olusegun Agagu, then minister of power and steel, invited Sunrise to preliminary discussions. The meetings took place on January 21 and 24.
On March 1, Agagu informed the company that Mambilla would be privately financed and that the federal government was considering a minority equity interest of no more than 25 percent. The minister also said an initial $100,000 tranche of the $500,000 processing fee should be put in escrow to cover a non-refundable consultancy charge.
Atiku subsequently led a federal government delegation to China in July 2002. The delegation included Aliyu, then minister of state for power and steel, and Adesanya.
During the trip, Nigerian officials and the Chinese companies signed a memorandum of understanding covering several power projects. One of them was the first phase of Mambilla, then estimated to cost $4.5 billion and generate 2,600 megawatts.
In August 2002, Agagu supplied Sunrise with the proposed principal terms and conditions for Mambilla. Sunrise completed and returned them the following month.
Agagu later left the ministry to contest the Ondo governorship election and was succeeded by Olu Agunloye.
On December 9, 2002, the ministry invited Sunrise to a meeting scheduled for January 15, 2003, to discuss and agree on the principal terms and conditions for executing the project.
Sunrise presented its tender to a multi-agency technical committee on January 15 or 16. The committee included officials from the ministries of power, water resources, and finance, as well as representatives from the Debt Management Office, the Federal Inland Revenue Service, and NEPA.
It was about two weeks after that presentation, on January 30, that China Castle transferred $500,000 to Douglas’s Citibank account.
On March 12, 2003, the technical committee issued its report. It said seven international construction companies had expressed interest in the project, but only four — Tafag Nigeria Limited, Lemna International, Sunrise, and Propel Consortium — submitted detailed proposals.
After assessing the proposals and presentations, the committee recommended Sunrise for the 3,960MW project on the basis of cost effectiveness, capacity to execute the work and the project’s economic implications.
It proposed further negotiations to refine the technical committee’s terms and said Sunrise had offered a tariff of 2.1 US cents per kilowatt-hour under a 40-year build-operate-transfer arrangement.
On April 7, Agunloye wrote to Obasanjo seeking approval to issue Sunrise a letter of comfort, begin negotiations on the concession and the source of financing, determine how the government’s proposed 25 percent equity would be funded, and appoint technical consultants.
Obasanjo wrote on the memorandum on April 9 that he had no objection to the request but directed the minister to present the matter to the Federal Executive Council for deliberation.
Agunloye submitted a memorandum to the council on May 15. The proposal came up at the council’s meeting of May 21, but its consideration and the extent of any approval became central points of dispute in the arbitration.
Obasanjo’s position was that the council did not approve the contract and that he ordered the memorandum withdrawn. Sunrise relied on a letter issued by Agunloye on May 22, 2003, as evidence that it had been awarded the project on a build-operate-transfer basis.
That disputed letter became the foundation of Sunrise’s multibillion-dollar arbitration claim against Nigeria.
Sunrise and Adesanya argued that Atiku lacked the political power to influence the purported May 2003 award. The tribunal found that contention implausible.
It noted that Atiku was directly involved in discussions about Mambilla from at least 2001, hosted a meeting with Sunrise and its Chinese partner, and led the Nigerian delegation to China in 2002.
The tribunal also relied on a February 2003 US diplomatic cable describing Adesanya as an “Atiku insider” and an associate of the vice-president. The cable recounted a late-January conversation in which Adesanya reportedly told US officials that Atiku had extracted major concessions from Obasanjo during negotiations over their re-election ticket and would become the “de facto head of government” if they won.
Adesanya did not deny the substance of his comments, although he said the cable represented only an extract from a much longer conversation. He said his point was that Atiku should not be discounted because of his political strength in northern Nigeria.
The tribunal concluded that Atiku possessed a considerable degree of power and influence in the federal government during the first half of 2003.
However, Atiku was not a party to the arbitration, did not testify before the tribunal and, on the materials reviewed for this report, was not shown to have personally directed the transfer to Douglas’s account. The tribunal’s findings addressed whether Adesanya’s explanation for the payment was credible in the context of Sunrise’s contractual claim and Nigeria’s corruption allegations.
Sunrise commenced its first arbitration against Nigeria in 2017, seeking about $2.35 billion for an alleged breach of the 2003 agreement.
The parties later negotiated a settlement under which Nigeria was to pay the company $200 million. A further dispute arose over the settlement, with Sunrise seeking another $200 million as a default payment, bringing its principal demand in the second arbitration to $400 million before interest.
In its final award, the ICC tribunal dismissed Sunrise’s claims and rejected its request for an order compelling Nigeria to pay the $200 million settlement sum and the additional $200 million default amount.
It also held that Adesanya was bound by the arbitration provisions in the settlement agreement and its addendum, and that it had jurisdiction over Nigeria’s counterclaim against him and Sunrise.
The tribunal ordered Sunrise and Adesanya to reimburse Nigeria for 75 percent of its legal fees and expenses. Nigeria’s recoverable costs were put at $11.82 million, of which $2.5 million was to come from funds held in escrow by the ICC. The balance of about $9.32 million is payable by Sunrise and Adesanya, with interest.
