Clause 8 of the $400 loan agreement signed by Federal Ministry of Finance on behalf of Nigeria and the Export-Import Bank of China on September 5, 2018, provides that: “The Borrower hereby irrevocably waives any immunity on the grounds of sovereign or otherwise for itself or its property in connection with any arbitration proceeding pursuant to Article 8, thereof with the enforcement of any arbitral award pursuant thereto, except for the military assets and diplomatic assets.
But contrary to the spurious claim that the sovereignty of Nigeria has been mortgaged to the Chinese the loans in question are tied to specific projects which are being executed and supervised by engineers and workers from China. Since the loan agreement in question was approved by both Chambers of the National Assembly, the surprise expressed by the House Committee has confirmed that the legislators did not study the terms and conditions attached to the loans before approving them.
This rule is hinged on the international law maxim- par inparem non habet imperium meaning that equal has no power over an equal. In the leading judgment of the Court, Eso JSC said that “Now the basic rule at common law as regards the jurisdiction of English Courts over sovereigns or sovereign states was that a foreign sovereign or sovereign foreign state was immune from the jurisdiction of the courts; although the courts would take jurisdiction if the sovereign submitted to their jurisdiction.It is common knowledge that Nigeria has acquired a notoriety for breaching terms of loan agreements and other contracts.
The contemptuous attitude of the government has been extended to international and regional courts as well as arbitration tribunals. In reaching its decision, the Court followed recent case law on the circumstances in which it can be said that property is “in use or intended for use for commercial purposes” pursuant to section 13 of the State Immunity Act 1978 .
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