Minister of Patroleum, Diezani Alison-Madueke and the Nigerian National Petroleum Corporation (NNPC) have been cautioned not to allow themselves to be lured into pursuing extra-judicial advantage in contempt of court in the case involving Brittania-U on the one hand and Chevron Nigeria Ltd as well as Seplat Petroleum Development Company Ltd, on the other.
Brittania-U had taken Chevron Nig Ltd and Seplat Petoleum to court, challenging the bid process in the divestment of Chevron’s interest in OMLs 52, 53 and 55, in which it (Brittania-U) claimed it was the highest bidder and that it was acknowledged to have won but was not given the asset.
Rickey Tarfa (SAN) counsel to Brittania-U, urged the minister to jettison the idea by Seplat’s lawyer, stating that if the minister gives consent to the bid process and divestment of Chevron’s interest in Oil Mining Leases (OMLs) 52, 53 and 55, it would serve as an affront to the authority of the courts seized with the suit.
He said this was especially as there was a pending application at the Supreme Court brought by Brittania-U and the substantive suit was still pending at the trial court and had been stalled at the instance of Chevron and Seplat, which had appealed against the decision of the trial court which states that it had jurisdiction to determine the merit of the case.
In a letter to the minister dated July 30, 2014 and titled: Suit No: FHC/L/CS/1711/2013 RE: Brittania-U Nigeria Limited V. Chevron Nigeria Limited and 4 ORS, Seplat’s lawyer, Damian Dodo SAN, argued that since the Court of Appeal in suit No: CA/L/100/2014 had set aside the interim order of injunction made by the Federal High Court sitting in Ikoyi, Lagos, it would be needless for parties to maintain status quo pending the final determination of the appeal and the suit which is presently before the Federal High Court, Court of Appeal and the Supreme Court respectively.
Dodo contended that the Federal High Court was not seized of the suit, stating that the decision of the Federal High Court on jurisdiction was currently being challenged by Seplat Petroleum Development Company Limited at the Court of Appeal and that the appeal would take seven or eight years to be concluded, while the proceeding at the trial court has been adjourned sine die, pending the hearing and determination of his client’s motion on notice for stay of proceedings pending at the appellate court.
Furthermore, Dodo (SAN) said his client was willing to offer full indemnity to the minister and the NNPC for any damages, should the court find in favour of Brittania-U upon the final determination of the suit. Apparently miffed by the abuse of court process coming from a highly placed legal luminary, lawyer to Brittania-U Nigeria Limited, Rickey Tarfa SAN advised the minister and indeed NNPC not to allow Seplat Petroleum Development Company Limited and its lawyer drag them in the mud, by disregarding both suits pending at the Federal High Court, Court of Appeal and the Supreme Court.
According to Tarfa, “Any attempt to shift the forum of litigation from the courtroom to the respected office of the Minister (a party impleaded in the suit) unless perhaps to explore amicable out-of court settlement, is not only misguided, it sounds regrettably in deficit of professionalism by otherwise eminent lawyers of the highest distinction in our noble profession.
“We shall not fall into the same egregious error by joining issues with them on matters which only the courts seized of the suit are competent to adjudicate upon. We can only hope, Madam Minister, that you join us in this stand” Citing the case of Obi V. INEC (2007) 11 NWLR (PT. 1046) where the Supreme Court warned against acting to anticipate cases in court or foist a fait accompli on the court and their adversary, Mr. Tarfa stated that “It is trite law that the duty of all parties to litigation, or whomsoever is called upon to act for the benefit or to the prejudice of the parties in litigation, over a matter that is sub-judice, is enjoined to demur once it comes to his or her knowledge that the court is seized of the matter.
.“Secondly, the learned counsel to Seplat has also boldly advised you, Madam Minister, to feel at liberty to act on their contemptuous request because, in their view, the Minister and NNPC are yet to be joined as defendants in the pending case. That invitation, we daresay, proceeded from a flawed premise. Your pending joinder is on notice to you since January, 2014. “Curiously, Seplat counsel found it convenient to not remember that its own client seeking to importune the Minister to so act in contempt of court to give prejudicial approval to an adverse sale of the OMLs, is a party to the said suit.
“Such is therefore a pretty mischievous invitation to be made to the Honourable Minister by counsel who, while acting in a professional capacity has a duty to act at all times in good faith; and not to deliberately mislead or neglectfully be reckless in rendering professional advice or opinion upon which recipients are expected to rely as sound and reasoned legal advice.
“Seplat is a defendant in the pending case. Chevron is the divesting entity and also the principal defendant. The exhortation by Seplat and its counsel to your esteemed office, in full knowledge of and apparent abject lack of any honest defense to the pending suit at the Federal High Court and now Supreme Court, bears eloquent testimony to the dictates and manipulations manifested by the desperate appeal to you, Madam Minister to consent to a transaction which does not even feature in the courts records.
“ The fact remains that the subject matter of the pending case and the appeal at the Supreme Court is the concluded sale by Chevron to Brittania-U of the 40% participation interest of Chevron in OMLs 52, 53 and 55. Of the agreed purchase price, Chevron has had good fund by way of confirmed irrevocable letter of credit in the sum of US$250 million from Brittania-U, and has kept same since September 30th, 2013 when the bid closed”.
On the issue of indemnity by Seplat’s lawyer in his letter to give an undertaking to the minister pending the outcome of the suit, Tarfa noted that parties should conserve their fanciful and disingenuous legal arguments or offer of undertaking to the wisdom of the court.
Brittania-U, Tarfa insisted, “cannot fathom any ingenious argument which will avail the Minister if she accedes to the underhand and arguably fraudulent request to consent to an adverse divestment of the same assets on the volunteer terms by Seplat solicitors in their letter to give an undertaking to the Minister pending the outcome of the suit as a quid pro quo for the assent- thereby embroiling and compromising the Minister with undue interest in the dispute.
“Any undertaking, at arm’s length, if warranted at all, ought only to be offered to the competent court where all parties including Madam Minister and NNPC will submit themselves to the authority of the court”, Rickey Tarfa stated.
Olusola Bello & Femi Asu
