Chinese firm Zhongshan Fucheng Industrial Investment has been granted final charging orders in respect of two residential properties in the United Kingdom belonging to the Nigerian government.
The properties against which Zhongshan sought charging orders are located at 15 Aigburth Hall Road, Liverpool and Beech Lodge, 49 Calderstones Road, Liverpool, estimated by the company to be worth between £1.3 and £1.7 million.
On 14 June, Master Sullivan of the High Court of Justice, King’s Bench Division, Commercial Court in London issued the final charging orders in favour of the Chinese company, according to court papers seen by PREMIUM TIMES.
Nigeria had objected to the interim charging and final charging orders, claiming that the application for the orders did not follow the requirements of the law and that state immunity applies to the premises as the acting head of Nigeria’s High Commission in London has certified that the properties are not in use or intended for use for commercial purposes.
“None of those listed as resident there on publicly available databases have any connection with the mission,” it added.
Details
Zhongshan was issued the final charging orders following its efforts to enforce an investment treaty award of $70 million. An arbitral tribunal had on 26 March 2021 issued a final award of $55,675,000 in addition to an interest of $9.4 million and costs of £2,864,445 payable by Nigeria to Zhongshan.
Zhuhai Zhongfu Industrial Group Co Ltd group of companies, the parent company of Zhongshan, and the Ogun Guangdong Free Trade Zone (OGFTZ) entered into a framework agreement on the establishment of Fucheng Industrial Park within the zone on 29 June 2010. The agreement gave Zhuhan the right to develop and run Fucheng Park within the zone.
The Nigeria Export Processing Zones Authority registered Zhongfu International Investment (NIG) FZE, a subsidiary of Zhongshan, as a free trade zone enterprise within the OGFZ in 2011.Ogun State later appointed Zhongfu as the interim manager/administrator of the zone.
In July 2016, Zhongfu alleged that the Ogun State Government was making efforts to terminate its appointment, adding that it planned to appoint another manager for the free trade zone to replace the Chinese investor.
Zhongfu launched an investment treaty arbitration against Nigeria on the strength of the bilateral investment treaty involving the People’s Republic of China and Nigeria.
In 2021, a London arbitration tribunal ordered Nigeria to pay Zhongshan the sum of $55.6 million in addition to interest and costs as compensation after finding the country liable for expropriation and other breaches of the China-Nigeria bilateral investment treaty.
Nigeria made an application to the Court of Appeal (civil division) of the Royal Courts of Justice in London in 2023, seeking to appeal against the judgement of Cockerill J, a high court judge, dated 2 December 2022.
The judge had dismissed Nigeria’s application to vary the order she made on 21 December 2021 on an ex parte basis in favour of Zhongshan for the enforcement of an arbitration award dated 21 March 2021 against Nigeria.
“Nigeria failed to comply with the generous time limit of two months and fourteen days to make such an application and, indeed, did not raise state immunity until 29 November, three months after the time limit expired,” the judgment delivered by the court of appeal on 20 July 2023 read.
“Nigeria failed to make any application within the time specified, and the Judge was amply justified in refusing relief for the reasons given by the Chancellor,” it added.
The court did not grant Nigeria’s wish to challenge the enforcement order. Last year, Zhongstan got interim charging orders on two Liverpool properties belonging to the Nigerian Government, which Nigeria opposed.
Nigeria said Zhongstan failed to give full and frank disclosure at the interim charging order stage, and therefore, the court ought not to exercise its discretion to make the charging order final.
“The properties are currently used for the purpose of leases to residential tenants unconnected with Nigeria and its Mission. Those are commercial purposes for the purpose of s13(4) of the SIA, and therefore, the enforcement against the properties is not barred by state immunity,” Ms Sullivan said in her judgment dated 14 June 2024.
“There is no good reason why I should not exercise my discretion to make the charging orders final, and I do so,” she added.
