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Justice Yusuf Halilu of the High Court of Federal Capital Territory, Jabi has fixed thursday for ruling on a motion on notice filed by embattled Chief Executive Officer of Capital Oil and Gas Ltd, Ifeanyi Uba, challenging his continued detention by the Department of State Service (DSS).
In the motion brought pursuant to Section 298(2) of the Administration of Criminal Justice Act (ACJA) 2015, Uba, through his lawyer, Ifeoma Esom is praying for “an order vacating/discharging the exparte order of this honourable court made on the 10th of May, 2017, allowing the applicant to detain the respondent in the custody of the applicant for an initial period of 14 days pending the completion of investigation”.
The DSS, based on a report made to it by the Nigerian National Petroleum Corporation (NNPC), over the purely civil dispute arising out of the alleged indebtedness of Capital Oil and Gas (COG) to the NNPC, arrested Uba from his house in Lagos on March 24, 2017 and kept him in its custody until April 14, 2017, when he was temporarily and conditionally released after he had been coerced into making payment of N2billion and executing various documents in favour of NNPC and Asset Management Corporation of Nigeria (AMCON).
However, Esom told the court that Uba upon return to his home in Lagos, in fear for his life and liberty should he renew his claims that he is not indebted to either NNPC Retail Ltd or AMCON as he had maintained before his incarceration, instructed his counsel to file an application for the enforcement of his fundamental rights.
When the suit came up before the Lagos division of the Federal High Court on the April 27, 2017, the court granted him leave to serve the originating processes on the SSS outside Lagos whereupon the originating processes were served on them on the 28th of April 2017.
According to Esom, “notwithstanding the pendency of the suit and the service of the originating processes, the SSS again invited the Respondent to report to it’s offices in respect of the same allegations made by the NNPC and AMCON which is the subject matter of the suit.
On May 5, 2017, the SSS arrested the respondent (Uba) in Lagos and moved him to their Abuja office, she revealed.
Based on this development, Uba’s lawyers filed a motion exparte on the 8th of May seeking, “an order directing the 4th and 5th respondents (DSS and Director General SSS respectively) to produce the respondent in court within 48 hours of the order of court to show cause why he should not be released unconditionally.
On May 9, 2017, the court made an order directing the SSS to produce Uba in court before the 12th of May to show cause why he should not be released.
Esom stated that the enrolled order was served on the SSS at about 10am on May 10, 2017.
According to her, “immediately upon the service of the enrolled order, the SSS surreptitiously filed and obtained on the same day, a motion exparte before the court which sought for an order to allow it detain the respondent for 14 days.
However, in their counter affidavit in opposition to Uba’s application, the SSS urged Court to dismiss the motion.
In a 5-parapgh affidavit deposed to by one Safwan Bello, an officer with the SSS, the Federal Government security agency stated that all the averments contained Uba’s affidavit are not true.
The SSS claimed that Uba was arrested on reasonable suspicion of his involvement in a crime, having converted (84million litres) of premium motor spirit belonging to the NNPC kept in the custody if Hus tank farm, to his personal use.
“That the PMS is worth N11billion, and after repeated demands, Uba refused to return the litres to the NNPC.
“That the action of the respondent is affecting the distribution of petroleum products to the populace.
“That the action of the respondent us sabotage of NNPC activities as it relates to distribution of petroleum products.
“That if no urgent steps were taken by the Federal Government, the action of the respondent would have plunged the country into widespread scarcity with its attendant effect on the economy.
In urging the court to vacate the exparte irder of 10th May, Uba posited that “The exparte order of this honourable court made on the 10th day of May 2017 was obtained upon suppression of material facts.
“Capital Oil and Gas Ltd (COG) of which the respondent is the CEO has always been one of NNPC’s largest Throughput providers and this is evidenced by Throughput agreements entered into between NNPC subsidiaries and COG over the years.
“These through-put agreements, in accordance with the norms and practice in the industry worldwide, allow conversion and diversion of IT products by the ‘Operator’ so long as the Operator is prepared to re-deliver the products (in terms of the current contract) within 7 days of demand by the products owner or to pay a penalty for non re-delivery.
“The penalty to re-deliver is expressly stated by the Contract to be a mere breach of contract remediable by the payment of penalty to the owner. The penalty is comprised of the cost of delivery of the products to the Operator’s tank farm with interest.
“There can therefore be no issue of crime in conversion or diversion of products under a throughput contract (regardless of the ordinary connotations of those words).
“The subject of the report by the NNPC and NNPC Retail Ltd to the Applicant herein is their current demand for re-delivery of products (about 80million litres), which it alleges have been converted or diverted by COG.
“This demand does not at all call for the intervention of any law enforcement agency.
“The throughput agreement expressly states that any penalty due for non re-delivery is to be treated as a debt and Law enforcement agencies including the applicant herein are not allowed to operate as debt collectors.
“The NNPC and its subsidiaries are clearly aware of this as it has been the practice between those subsidiaries and COG over time, upon a global reconciliation of accounts to pay such costs arising from conversion/diversion of IT products belonging to NNPC subsidiaries. There has never been any problem in this regard in the past and neither is any problem envisaged in the current situation even if the alleged volumes claimed by the PPMC/NNPC Retail were accurate.
SEYI ANJORIN, Abuja
