The presidential candidate of the Social Democratic Party (SDP) in the 2023 general election, Mr Adewole Ebenezer Adebayo, has described the judgment seizing the presidential aircraft as a temporary setback.
He stated that the judgment would be vacated in the next hearing while also noting that assets or monies or property belonging to sovereign.
Adebayo who is also an international lawyer, said the seizure of the Federal Government’s presidential jet in Paris, France by a Chinese company was an international embarrassment.
The legal tussle between Ogun State and Federal Government against the Chinese company, Zhongshan Fucheng Industrial Investment Company Limited over the seizure of the Federal Government’s aircraft in Paris, France, arose from the breach of contract between it and Ogun State.
The Chinese firm is seeking to enforce a final award granted in its favour on March 26, 2021, against the Ogun State government.
Commenting on the development, he said, “Things actually went wrong when the company and the state government that were supposed to be partners became opponents and started litigating. Sometimes, these businesses outlive the tenure of the incumbent governor and the successor might not understand the seriousness and decide to terminate the contract.
But internationally, when you engage investors and you sign these contracts, you are not only signing commercial contracts, you are also signing treaties in some situations, and if there is a dispute between the government and the investor, the investor may decide to sue on their own, in a regular court, or it may go into arbitration, or state treaty arbitration. In this case, as a Nigerian doing business in China, there is an agreement internationally in which Nigeria and China are signatories, where they say if our citizen is doing business in the other country, they can do arbitration through the mechanism of the treaty.
So, the issue we need to understand is that the dispute is not originally a Federal Government obligation; it is an obligation of Ogun State. But, under public international law, subdivisions, subsidiaries, and sub-nationals, are not recognised internationally. So, if a state out of the 36 states in Nigeria has an international obligation, Nigeria will be the one to be held to account.
That is where Nigeria is implicated in the matter. We also need to know that it is not a loan; it is not as if Nigeria took a loan and used any of these national assets as collateral. No, it was business that was supposed to be done between the Ogun State Government and the Chinese private firm, which has gone to arbitration to allege that the Ogun State Government breached the contract by stopping them from making progress and they have suffered losses and both parties went to arbitration.
The second stage where it went wrong is that when you go to arbitration and the arbitration award is against you, you should try for the sake of your reputation. But, on some occasions, the state entity involved may be advised by the lawyers that the arbitrators made a mistake, misconducted themselves, and went outside their jurisdiction. So, some of these things may go into litigation and sometimes, it is just a lack of political will to deal with the issue and they are dealing with it casually.
The interim attachment of the presidential jets doesn’t mean that the jets have been lost because, under international law, assets of the Federal government used by the government for diplomacy and monies kept in our central bank for banking activities are immune. No court at any time can attach them. I want us to understand that clearly.
So, when you go to court for an interim order, typically only one side is heard, the court has not heard from Nigeria’s side, so the Chinese firm going to court to say that these are aircraft like any other aircraft, they are for maintenance in France and any person, whether you are in government or not can bring your aircraft for maintenance and seize the aircraft.
So, the court might be inclined to just put a temporary seizure and serve notice on Nigeria to appear. I believe that as the law stands, once Nigeria appears there and can demonstrate especially with the assistance of the foreign ministry of the French government that these are diplomatic assets, the court will lift the seizure.
That does not mean you should not settle your counter-party, and it doesn’t mean you should not pay your judgment debt when you have gotten finality in litigation, but typically, you do not attach monies or assets belonging to the Central Bank and you do not attach asset or money or property belonging to a sovereign and Nigeria is a sovereign headed by a president who is using it for diplomacy.”
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