Court Grants FG’s Request to Amend Suit against Total, Chevron

Davidson Iriekpen

A Federal High Court Lagos monday granted an application by the federal government to amend processes in its suit against Total E&P Nigeria Plc, over alleged under declaration of crude oil exports.

The government had sued Total E&P, alleging that it under-declared the volume of crude oil it shipped out of the country between January 2011 and December 2014.

The plaintiff accused the oil company of short-changing the country to the tune of $245 million, by allegedly shipping several barrels of crude oil out of Nigeria, without making due remittance to the federal government.

At the resumed hearing of the case monday, Mr. Charles Nwabulu, announced appearance for the plaintiff, while Mr. H. Abudulkareem appeared for the defendant.

Nwabulu then informed the court of a motion seeking leave to amend its pleadings.
He said the plaintiff had written to the court on December 9, 2016, and had filed an affidavit of urgency to enable it apply for hearing of its motion to amend its processes.

Moving in terms of his motion, Nwabulu said his application was premised on the provisions of Order 17 rules 1, 2, and 3 as well as sections 36 of the 1999 Constitution.

He urged the court to grant the plaintiff’s application and allow an amendment.
In response, the defence counsel, Abdulkareem, said he was not opposed to the prayer for amendment, but urged that the court put it on record that the plaintiff had made several amendments in the suit.

He noted that the amendments of plaintiff’s processes had foisted it on the defence to make a consequential amendment on its statement of defence, adding that same should be put on record.
Defence counsel also prayed that upon a grant of amendment of the plaintiff’s processes, a time frame should be afforded the defence to regularise its statement of defence.
The trial judge, Justice Mojisola Olatoregun, then enquired from counsel to the plaintiff, how many times he had amended his processes.

Nwabulu informed the court that he had amended twice.
In a short ruling, the court granted the plaintiff’s motion and adjourned the case to March 23.
In the same vain, a similar suit between the federal government and Chevron Nigeria Limited, was also called up monday.

Mrs. Miannaya Essien (SAN) had announced appearance for the defendant, while Nwabulu also appeared for the federal government.
Nwabulu had also made similar application for amendment of plaintiff’s processes before the court.

He stated: “My lord, we have four motions in court and we had written a letter dated December 9, 2016 with an affidavit of urgency informing the court of our motion; so if it pleases your lordship…….”

Justice Olatoregun abruptly cut in, “it does not please me.”
She instantly chided plaintiff’s counsel for showing what she described as “unseriousness” in the suit, adding that the matter had been on for a long time, with no remarkable progress.
She noted that the matter was adjourned till today for commencement of trial, and asked the plaintiff for its witnesses.

The judge frowned at the habit of “pushing processes” instead of focusing on the business of the day, adding that it was an unacceptable practice.

She urged counsel to exhibit due diligence in the matter.
Meanwhile, defence counsel informed the court that in spite of serving the plaintiff with a memorandum of appearance, the plaintiff still served processes directly on her client, instead of her chambers.

In response, Nwabulu apologised for the error adding that same would be redressed.
Consequently, the court granted the plaintiff’s application for amendment, but awarded a cost of N15,000 against the plaintiff.

She also fixed March 23 for trial.
The federal government through its lawyer, Prof. Fabian Ajogwu (SAN), had said it filed the suit following a forensic analysis.

The analysis was said to be linking decline in oil revenue to alleged non-declaration or under-declaration of volume of crude oil shipped out of the country by Total and other oil companies.
The federal government’s statements of claims were backed by supporting affidavits deposed to by three United States of America-based experts.

According to the deponents, about 57 million barrels of crude oil were allegedly illegally exported by the defendant.

He said these were sold to buyers in the US between January 2011 and December 2014 without making due remittance to the federal government.

The deponents claimed that the said crude oil was sold to Tostsa Total oil Trading SA of San Felipe Plaza-Suite 2100,5847 San Felipe, 770557-Houston, US at the port of Philadelphia, Pennsylvania.

The plaintiff claimed to have uncovered the alleged illegality using high-technology information technology system, including satellite tracking systems, which were deployed by its consultants.
The federal government is therefore, seeking a court order, compelling Total E&P to pay it $245 million, “being the total value of the missing revenues from the shortfall /under-declared crude oil shipments.

The federal government wants 21 per cent interest per annum on the sum till final liquidation.
Again, it is also seeking general damages in the sum of 245 million dollars from Total E&P Nigeria Plc.

The court had on September 30, 2016, dismissed a preliminary objection filed by Total, urging the court to dismiss the federal government’s suit for failing to disclose a reasonable cause of action.

Meanwhile, similar suits had been filed by the federal government against, Agip Oil Company Ltd, Shell Western Supply and Trading Ltd and others.