Optimum Petroleum Tackles Lekoil over OPL 310
The recent suit filed by Lekoil Nigeria Limited at the Federal High Court in Lagos where it secure an ex-parte injunction against Optimum Petroleum Development Limited has not only heightened the dispute between the two companies but revealed what many did not know, Wale Igbintade writes
The recent order of injunction granted by a Federal High Court in Lagos Lekoil Nigeria Limited (LNL), an oil and gas exploration and production company against its partner, Optimum Petroleum Development Limited, to prevent the company from interfering with its rights and interest in the Oil Prospecting Licence (OPL) 310 asset area has again raised some questions in the legal circle as to whether a party can re-litigate a claim, defence or issue that had already been litigated.
While Lekoil in a statement by its Chief Executive Officer, Lekan Akinyanmi, said the injunction became necessary to allow the company look forward to the conclusion of the license conversion and retention, Optimum Petroleum said Lekoil concealed and misrepresented material facts concerning the dispute and proceedings before the courts.
According to Akinyanmi, “Lekoil requested that the court grant an order of interim injunction restraining Optimum Petroleum from taking further steps to expropriate, appropriate, transfer or extinguish Lekoil’s rights and interests in the 40 per cent participating interest in OPL 310.
“Also, Optimum Petroleum is restrained from making representations before any regulatory authority that the rights of Lekoil in the 22.86 per cent participating interests has reverted to Optimum Petroleum or any other authority or person,” the statement said.
He stated that Lekoil resorted to litigation after numerous efforts to agree with Optimum Petroleum about securing Lekoil’s 40 per cent participating interest in OPL 310.
“In 2013, Lekoil acquired a participating interest of 17.14 per cent through its affiliate Mayfair Assets and Trust (Mayfair), with ministerial consent granted in 2017. The company acquired a further 22.86 per cent in 2015 via acquiring the entire issued share capital of Afren Investment Oil and Gas Limited (AIOGL) from the court-appointed administrator of the insolvent parent Afren,” Akinyanmi added.
He noted that thereafter, the company sought ministerial consent through the then regulator and operator, with that application for consent remaining pending. It added that it is committed to working with all stakeholders to develop Nigeria’s oil and gas resources responsibly and sustainably.
“This is an important step in protecting our rights and interests in the OPL 310 license area, as well as the interests of investors in Nigeria’s oil and gas sector and will allow us to move forward with credible development plans that will benefit the nation,” Akinyanmi,
But in its response, Optimum Petroleum said the dispute started when both Afren, Lekoil failed to obtain its consent and the consent of the Minister of Petroleum before the transfer of the company’s shares to Lekoil and 22.86 per cent participating interest in OPL 310.
In a rejoinder made available to THISDAY, Optimum Petroleum pointed out that on March 28, 2019, the Federal High Court, Lagos Division, presided over by Justice M.S. Hassan, delivered judgment in favour of the company and the petroleum minister in Suit No. FHC/L/CS/482/18.
In a statement signed by its Chairman, Alhaji Ibrahim Bunu, the company disclosed that the court in its judgment dismissed the suit as lacking in merit when it found that Lekoil had not acquired the shares of Afren and by that, interest in OPL 310 as its purported acquisition was inchoate and invalid.
It added that by the judgment, the consent of the petroleum minister and the consent of Optimum Petroleum to the transfer of shares of Afren to Lekoil and indirectly the 22.86 per cent interest in OPL 310 could not be obtained in default.
Besides, it stated that by the judgment of the Federal High Court, Afren and Lekoil failed to obtain the consent of Optimum Petroleum and the petroleum minister before the purported transfer of the shares of Afren to Lekoil.
“Lekoil and Afren appealed this judgment to the Court of Appeal, Lagos Division but later withdrew the appeal by a Notice of Withdrawal of Appeal filed on 16th May 2019 at the Court of Appeal thereby confirming the judgment as final, valid, subsisting, and binding”.
“Optimum notes with great concern some recent publications purportedly issued by Afren titled: “Notice of caution to all persons dealing or considering dealing with the 22.86 per cent participating interest held by Afren Investment Oil and Gas Nigeria Limited in OPL 310 pursuant to consent by the Minister of Petroleum Resources in accordance with Nigerian Petroleum Law” which were published in the Punch Newspapers on 8th May 2023, THISDAY Newspapers on 10th May 2023 and Energy Times Newspaper on 29th May to 4th June 2023, among other newspaper and online publications.
“Aside from the fact that no name or position in Afren was indicated as the author of the said publications on behalf of Afren, the said publications concealed or otherwise misrepresented material facts concerning the proceedings before the court and the subsistence of an ex parte order of injunction granted by the court on 30th March 2023 in another suit initiated by the same plaintiffs after the said final judgment of the same court on 28th March 2019, to wit: Suit No. FHC/L/CS/563/2023 – Afren & Lekoil v. Optimum,” the statement explained.
Optimum Petroleum said it was constrained to release the rejoinder to set the records straight and protect the integrity of the court and the proceedings before the court and for the benefit of the investing public, third parties, and the world at large.
It noted that the said publications concealed the fact that after the company was served with the said ex parte order of injunction on April 6, 2023, Optimum Petroleum filed and served a motion on notice to discharge the said ex parte order of injunction on April 17, 2023, and the said motion on notice was not heard or argued in court within 14 days of filing it.
“Therefore, in line with the provisions of order 26 rule 10(1)(a) and (3) of the Federal High Court (Civil Procedure) Rules 2019, the said ex-parte order of injunction automatically expired or lapsed by operation of law within 14 days of the filing of the motion on notice to discharge the ex parte order, that is, 2nd May 2023,” it argued.
The company added that the Order 26 Rule 10(1)(a) and (3) of the Federal High Court (Civil Procedure) Rules 2019provided that an ex parte order shall not last for more than 14 days after the person affected by the order has applied for it to be discharged.
In addition, it said the situation can only take place where a motion to discharge the ex-parte Order is not heard or argued within 14 days of its being filed, the ex-parte order shall lapse.
Optimum contended that this position of the law has been settled in a plethora of cases by the Supreme Court such as the case of Brittania-U (Nigeria) Ltd v. Seplat Petroleum Development Company Ltd (2016) 4 NWLR (Pt. 1503) 541.
“In this regard therefore, the said publications in the Newspapers on 8th, 10th, 29th May, and 4th June 2023 respectively are false, malicious, offensive, a clear misrepresentation of facts, and an affront to the integrity of the court when they state that the ex-parte order of injunction made on 30th March 2023 by the court is still subsisting and effective as at the date the publications were made.
“Optimum reserves its right to seek appropriate legal remedies and urges the investing public and third parties to disregard those false, offensive, malicious, and/or other similar publications.
“Optimum Petroleum uses this opportunity to assure the investing public, third parties, and the world at large that Optimum Petroleum is vigorously contesting and challenging Suit No. FHC/L/CS/563/2023 which raises issues that are the same or similar to issues that were determined by the final, valid, and subsisting judgment of the court in Suit No. FHC/L/CS/482/18.
“The only significant difference is that Suit No. FHC/L/CS/482/18 was before a different judge.
“Be that as it may, in deference to the integrity of the court, Optimum Petroleum will refrain from delving into issues or taking steps concerning issues that are presently subjudice in Suit No. FHC/L/CS/563/2023,” it noted.
