Ruling on two separate applications filed by Shell Nigerian Exploration & Production Company and Nigerian Agip Exploration Limited seeking to set aside an order of forfeiture granted the Economic and Financial Crimes Commission (EFCC) in respect of Oil Prospecting License OPL 245, known as Malabu oil was on Monday.
Justice John Tsoho of the Federal High Court Abuja had on January 26, 2017, granted temporary forfeiture of the Oil Prospective License (OPL 245) bloc to the Federal Government.
The two multinational companies, which are affected by the forfeiture order of the oil blocks, approached the court with separate applications to set aside the order, while challenging the propriety of the federal government withdrawing the oil block from them.
Justice Tsoho, at the last sitting on the matter on February 27, 2017 slated yesterday to decide the two applications, after taking arguments from Prof Olaniwun Ajayi (SAN), counsel representing Shell, Babatunde Fagbohundu (SAN) counsel representing Agip, and Mr Johnson Ojogbane, representing the anti-graft agency.
The ruling could not go on because of two fresh applications filed by Malabu Oil, principally seeking to be joined in the matter as well as for an opportunity to be a party in the already heard applications filed by Shell and AGIP.
Malabu Oil, the firm from which the oil bloc was originally assigned by the federal government in 1998 under controversial circumstances. represented yesterday by Abdullahi Haruna informed Justice Tsoho that the applications had been served on parties and that they have responded accordingly.
Haruna also told the court that the joinder application was aimed at reopening hearing to accommodate Malabu Oil on the applications made by Shell and AGIP, adding that the purpose, “is to join us as respondents”.
Reacting to Malabu Oil’s applications, AGIP’s counsel, Babatunde Fagbohundu and Muyiwa Balogun representing Shell, all opposed the applications and urged the court to dismiss them summarily.
According to Fagbohundu, the applications were frivolous and he urges court to dismiss them summarily from the bench.
Fagbohundu argued that, “when a court hears a matter and adjourns for ruling, party (ies) cannot pull back the hands of the clock.”
On his part, Shell’s counsel, Balogun reminded the court that at the last hearing of the matter on February 27, “Counsel to Malabu Oil drew the attention of the court to his applications that were yet to be filed and served” but that the court ruled that the proposed applications “should be in abeyance.”
“By these applications, Malabu Oil is asking the court to sit on appeal over its own ruling” the Shell lawyer stated even as he asked the court to dismiss the applications summarily.
EFCC’s counsel, Johnson Ojogbane did not file any reaction to the applications but rather left the issue to the discretion of the court.
He said, “We did not file any application in respect of the application filed by Malabu Oil, the decision of the court will determine whether or not we will join issues with them.”
However, Haruna, pursuant to Order 27 Rule 6 of the Federal High Court Rules filed what he described as “innocuous application” by way of motion on notice introducing a further affidavit (criminal charge filed against the defendants) by the Federal Government before Justice Ahmed Ramat Mohammed of the Federal High Court in Abuja.
In his ruling, Justice Tsoho granted leave and deemed the further affidavit as properly filed, even as Shell and AGIP had told the court not to accord any probate value to the further affidavit (criminal charge), because it was not yet filed when their applications were argued and date fixed for ruling.
However, after listening to counsels’ submissions, Justice Tsoho, who expressed dismay over the applications, held that even though Malabu’s application is to delay proceedings, however “in the interest of fair hearing, an application before a court must be heard.”
The Judge consequently adjourned ruling on Malabu’s application till March 17, 2017.
Justice Tsoho had on January 26, 2017 issued an order of forfeiture of the Oil Operating License of OPL 245 also known as Malabu Oil to the federal government following EFCC’s exparte motion that the license was a producer of crime.
Arguing the Shell application, Ajayi said EFCC did not meet the conditions prescribed in the EFCC Act before it rushed to the court for an order of forfeiture and urged the court to set aside the order, because conditions precedent were not met by EFCC before the agency obtained the order from the court.
The senior counsel also said that the Chairman of the EFCC did not only file a wrong court process but misled the court in issuing the forfeiture order without hearing from Shell and Agip.
In his submission, counsel to Agip, Fagbohundu, while adopting the submissions of Ajayi added that it is unconstitutional to attach properties belonging to parties through an ex parte motion because it denied them fair hearing.
But EFCC’s counsel, Ojogbane said that the arguments of both counsel were misconceived therefore should be discountenance and added that the order was properly made to prevent any action on the oil block.
“OPL 245 is a subject of criminal investigation and prosecution .In fact, there are charges now before the court on the criminality. The order was not only about preserving the subject matter but stopping criminality from progressing”, he argued.
The counsel to the EFCC further maintained that asking the court to vacate the order was a disservice to the country, adding that, the application lacked merit and should be dismissed.
and then