The Chinese firm which impounded three Nigerian Presidential jets – Zhongshan Fucheng Industrial Investment Co. Limited – said yesterday it had released one of the aircraft.
There was no immediate confirmation of the release from the Federal Government but Foreign Affairs Minister, Yusuf Tuggar, said in Malabo, Equatorial Guinea, yesterday that he was working with the Attorney General of the Federation and Justice Minister Lateef Fagbemi (SAN) to resolve the issue in dispute.
The Chinese firm had secured a court order to confiscate three Nigerian presidential jets until it (Zhongshan) receives $74.5 million awarded it against Nigeria.
Online newspaper, Premium Times, quoted a spokesman for the company as saying the jet release was to enable President Bola Tinubu use it for a scheduled meeting with President Macron of France next week.
“Zhongshan has consistently sought to act reasonably and fairly in the course of a legal dispute with Nigeria which was not of its making,” the spokesman reportedly said.
“It (Zhongshan) has now been made aware that an Airbus A330, currently detained in France as a result of a French court order obtained by Zhongshan is needed for the President of the Federal Republic of Nigeria to travel to a scheduled meeting with President Macron of France early next week.
“As a gesture of goodwill, Zhongshan has lifted the seizure of that aircraft immediately. This will allow it to be used for the President’s trip.
“Zhongshan remains committed to talks with representatives of the Federal Government of Nigeria, this time serious and substantive on both sides, with a view to reaching a reasonable compromise settlement rapidly.”
Zhongshan also said through its lawyers that some of its management team in Nigeria were threatened and physically harmed by agents of the state government.
The Ogun State Government, it alleged, deployed the police to assault, threaten, and unlawfully detain its workers after the government revoked its export processing zone management contract.
It mentioned one Mr Wenxiao Zhao as having been verbally and physically assaulted by the police on the orders of the state government.
Negotiation in progress, says Foreign Affairs Minister
Tuggar, who was on President Tinubu’s visit to Equatorial Guinea, told journalists in Malabo that negotiation was already in progress by the parties to resolve the issue diplomatically and legally.
He stressed the need for state governments in particular to register similar contracts with relevant authorities in Nigeria to avoid future complications.
“The Attorney-General and I are working on it, both diplomatically and then from the legal perspective as well, to ensure that this issue is resolved,” he said.
Continuing, Tuggar said: “But again, this is part of the problem when sub-national actors like state governments take it upon themselves to go into agreements, go into international arrangements, without recourse to the Ministry of Foreign Affairs, without recourse to the federal government, and then when it goes awry, we are left with the problem to deal with.
“That is why it’s always important that such arrangements should be registered with the mission there, with the embassy, with the Ministry of Foreign Affairs, and with the federal government. This is something that Ogun State, under a different administration, not this governor, entered into that we’re not aware of. All we know is that they’re going after Nigerian assets.
“That’s why, really, foreign or international negotiations is not the purview of sub-national actors. You should always have those that are experienced in such an area that have the necessary skills and the necessary training to negotiate these sorts of agreements.
“Well, it’s in progress, we will come back to you and give you an update as and when.”
The litigation stemmed from a failed contract between the company and the Ogun State Government.
The State government had allegedly granted the Chinese a 99-year Certificate of Occupancy for over 2,0000 hectares of land in the Zone.
The contract was terminated in 2015 by the immediate past governor of the state, Senator Ibikunle Amosun after the Chinese declined a renegotiation of the terms.
The foreign company commenced arbitration in 2016 culminating in a $74.5 million compensation in its favour.
The company then moved to seize the aircraft – Dassault Falcon 7X at Le Bourget Airport in Paris, a Boeing 737, and an Airbus 330 at Basel-Mulhouse Airport in Switzerland.
The Federal and Ogun state governments appealed the matter in “eight” jurisdictions, including the United Kingdom (UK) and the United States (U.S).
A US appeal court has however rejected Nigeria’s sovereign immunity defence to the enforcement of the investment treaty award won by Zhongshan.
In a 2-1 verdict deliveredon August 9, the majority ruling affirmed the judgment of the US district court for the District of Columbia that held that the arbitration award is enforceable.
The federal government had accused the Chinese company of using “subterfuge” and “arm-twisting tactics” to make Nigeria lose some of its ”national assets” abroad.
“The Federal Government is not under any contractual obligation with the company. The case in which Zhongshan is trying to use every unorthodox means to strip our offshore assets is between the company and the Ogun State Government,” Special Adviser to the President on Information and Strategy, Bayo Onanuga said in a statement on Thursday.
He said: “It must be said without any equivocation that Zhongshan has no solid ground to demand restitution from the Ogun State Government based on the facts regarding the 2007 contract between the company and the State Government to manage a free-trade zone.
“When the contract with Ogun State was revoked in 2015, the company had only erected a perimeter fence on the land earmarked for a free trade zone.
“While the Attorney-General of the Federation and Minister of Justice are working with the Ogun State Government on an amicable resolution, Zhongshan obtained two orders from the Judicial Court of Paris dated March 7, 2024, and August 12, 2024, without any notice being duly served on the Federal Government of Nigeria and Ogun State Government.
“This arm-twisting tactic by the Chinese company is the latest in a long list of failed moves to attach Nigerian government-owned assets to foreign jurisdictions.
“Material facts in the transaction between the Ogun State Government and Zhongshan point to another P&ID case in which unscrupulous and questionable individuals falsely present themselves as investors with the sole objective of cheating and scamming Governments in Africa.
“Undoubtedly, Zhongshan withheld vital information and misled the Judicial Court in Paris into attaching the Nigerian government’s presidential jets, which are on routine maintenance in France. The use and nature of the Presidential jets as assets of a Sovereign entity whose assets are protected by diplomatic immunity forbid any foreign Court from issuing an order against them.
“We are convinced the Chinese company misled the Judicial Court of Paris regarding the use and nature of the assets it seeks to attach and did not fully disclose to the court as required by law.
“This same Chinese company had tried to enforce its questionable judgment in the UK and USA but failed.
“Like the P&ID case, foreign companies are trying to defraud Nigeria with the collaboration of some bureaucrats. Zhongshan appeared to have sold the judgment they got to a venture capitalist seeking to make money by embarrassing the Federal Government and President Bola Tinubu.
“We want to assure Nigerians that the Federal Government is working with the Ogun State Government to discharge this frivolous order in Paris immediately.
“Nigerian Government will always work to protect our national assets from predators and shylocks who masquerade as investors.”
Attorney General Fagbemi said through his media aide Kamarudeen Ogundele on Thursday that “though, the dispute originated from engagements of Ogun State Government, the consequential enforcement actions are being directed against the federal government and its assets in line with extant principles of international law, which hold that the actions of a subnational or local entity are attributable to the state or country itself.
“The offices of the National Security Adviser and the Attorney-General of the Federation have already set in motion both legal and diplomatic steps to ensure the discharge of the inappropriate orders against the aircraft, which are covered by sovereign immunity.
“While, further actions are being put in place to resolve the entire dispute through available legal means, the firm position of the federal government remains that the aircraft in question are sovereign assets used solely for sovereign purposes and are, therefore, immune from attachment, as Zhongshan has sought to do.”
The Ogun State Government separately flayed the Chinese company for its action
It accused the Chinese of acting in bad faith.
Mr. Kayode Akinmade, special adviser on Media and Strategy to Governor Dapo Abiodun, said the French court’s order was obtained “without notice being duly given to the Federal Government or Nigeria, Ogun State or their legal counsel.”
He said the state government learned of two orders of the Judicial Court of Paris dated 7 March 2024 and 12 August 2024 respectively, both obtained by Zhongshan “without notice being duly given to the Federal Government or Nigeria, Ogun State or their legal counsel.
“This is the latest in a series of ill-advised attempts by Zhongshan to attach Nigerian-owned assets in foreign jurisdictions, none of which have to date led to the recovery of any sums from Nigeria. Each of the three aircrafts is used solely for sovereign purposes and as such are immune from attachment under international and French law.
“In obtaining the provisional attachments, Zhongshan deliberately withheld information from the Federal Government of Nigeria, Ogun State and their legal counsel. Shockingly, it also appears to have misled the Judicial Court of Paris as to the use and nature of the assets it seeks to attach and not made full disclosure to the court as required by law.
“Ogun State in conjunction with the Federal Government of Nigeria, has taken swift action to ensure that these provisional attachments are lifted without delay. Just like the P&ID case, this is another unfortunate case of unscrupulous individuals masquerading as foreign investors with the sole aim of defrauding Ogun State and Nigeria.
“It should be recalled that the underlying contract between Ogun State and Zhongshan was executed in 2007, 12 years before the present administration, for the management of a free-trade zone. The parties entered into a dispute in 2015 with arbitration commencing in 2016. By 2019, when the current State Administration took office, the hearing at the arbitration had been all but concluded. The Arbitral Panel awarded over 60 million USD against the Federal Government of Nigeria (FGN) which was a co-Defendant, when all Zhongshan had done was to build a perimeter fence around the free-trade zone.
“Needless to say this was a bad/unfair decision. The present State Administration could not in all good conscience allow such an unconscionable and baseless decision, which would dissipate the commonwealth of the good people of Ogun State, to stand. Accordingly, and based on erudite legal advice, this Administration resolved to resist the enforcement of the award.
“The resistance was successful in 8 different jurisdictions. Currently, there are pending appeals against recognition orders issued in both the US and UK. On the further advice of counsel, Ogun State also engaged Zhongshan in settlement discussions on reasonable terms. The last meeting attended by several officials of Ogun State, including His Excellency Prince Dapo Abiodun – the Governor of Ogun State, and the Honourable Attorney General/Minister of Justice lasted for three days, in September 2023 in London. Zhongshan’s initial reasonable readiness to consider Ogun State’s offer, was surprisingly reversed by the second day, with an insistence on the payment of the full debt.
“This led to a breakdown of the mediation, with parties agreeing to meet again in the first quarter of this year. Since then, Zhongshan has in bad faith been evasive and instead embarked on a series of enforcement proceedings which the legal team appointed by the FGN and Ogun State have successfully opposed. In cases similar to the present one where Zhongshan obtained an ex-parte order, Ogun State has successfully set aside the orders.
“We naturally regret any embarrassment this has caused the Federal Government of Nigeria, HE President Asiwaju Bola Tinubu, GCFR and the good people of Ogun State and re-affirm our commitment to constantly and consistently protect the integrity of the nation and its assets. We have taken all necessary legal steps to ensure that this spurious and baseless order is vacated within the shortest possible time.
“As a sovereign nation, whose assets are protected by laws of sovereign immunity, we vow to resist any attempts at blackmail and theatrics clearly designed to extort and embarrass our dear country. It is important to note that Ogun State never gave up on a reasonable settlement option, with the most recent letter sent to Zhongshan, last week. Unfortunately, Zhongshan only responded after obtaining this latest order.
“A reasonable and objectively quantifiable settlement figure has always been our preference and continues to be an option in the resolution of this protracted dispute.”
Social critic, Senator Shehu San said on X that “Foreign multinational companies have perfected the art of coming to our country to sign business deals and when there are issues, they sue us in European courts. Our lawyers drafting contracts papers or MOUs should take note of this.”
