Dispute Over OPL310 and Doctrine of Res Judicata-Our Rejoinder
Hamilton Esi
The attention of Afren Investments Oil & Gas (Nigeria) Limited and Lekoil 310 Limited have been drawn to a publication in THISDAY Newspaper of Saturday 8th July, 2023 with the caption “Dispute over OPL 310 and doctrine of res judicata”, and a publication in THISDAY Newspaper of Wednesday 12th July 2023 with the caption “Optimum Petroleum Tackles Lekoil over OPL 310” both authored by one Wale Igbintade. Both publications are full of distortions capable of deliberately misinforming the public. For the purposes of clarity, there is a need to correct the records.
Suit No. FHC/L/CS/482/2018 between Lekoil 310 Limited (“Lekoil 310”) & Anor. v. The Honourable Minister of Petroleum Resources & Anor., was instituted in 2018 Afren Investments Oil & Gas (Nigeria) Limited (AIOGL) before the Federal High Court, Lagos to address the protracted delays in the receipt of ministerial consent to Lekoil 310’s bona fide acquisition (the “Share Acquisition”) of the entire issued share capital of Afren Investments Oil & Gas (Nigeria) Limited (AIOGL) from Afren Nigeria Holdings (UK) (“ANHL”). By mutual consent and for valuable consideration, Lekoil 310 entered into the Share Acquisition with ANHL in 2015. ANHL isthe parent company to AIOGL at the time) in 2015. AIOGL is the holder of 22.86% participating interest in OPL 310 (the “Interest”). ANHL duly sought ministerial consent for the Share Acquisition in 2016, but this was challenged by Optimum. The challenge by Optimum and the delay in securing ministerial consent to the Share Acquisition culminated in the 2018 Court action. In its judgment, the Court held that the Share Acquisition was at the time “inchoate and invalid” because it lacked ministerial consent The Court also held that Optimum’s consent was required for the Share Acquisition.
In line with the Court judgment and provisions of the Petroleum Industry Act, AIOGL formally notified, and requested Optimum’s consent to the Share Acquisition. Optimum however refuses to acknowledge AIOGL’s subsequent formal notification, and request for consent from Optimum. This is not only acting mal a fide but is also in violation of the same provision that Optimum relies on to demand consent for the Share Acquisition. This provision specifies that Optimum can only withhold consent for the Share Acquisition if Lekoil 310 fails to demonstrate its financial and technical capacity to fulfill its obligations as the parent company of AIOGL regarding OPL 310.
To address this impasse, AIOGL and Lekoil 310 instituted Suit No. FHC/L/CS/563/2023 seeking interpretation of the previous judgment in Suit No. FHC/L/CS/482/2018. The suit aims to determine, whether the court’s finding of “inchoate and invalid”, implies that AIOGL’s shares and participating interest in OPL 310 reverts and/or devolves to Optimum or indeed any other person or authority instead of AIOGL. The new suit also seeks a determination of whether the judgment does not imply that AIOGL can make further representations in respect of the application for requisite consent, as against expropriation of its rights and interests in OPL 310. The suit does not seek to re-litigate the subject matter of Suit No. FHC/L/CS/482/2018 but rather the former validates and derives functional support from the latter.
It is difficult to surmise how the subsequent lawsuit raises the issue of res judicata. Res judicata is a doctrine that rides on the pillars of the triple identity test of sameness of parties, issues and subject matter. It is not a doctrine that arises by sheer collateral relationship between an earlier suit and a subsequent one especially where the subsequent suit is a derivative of the former. When a decision appears unclear, ambiguous or leaves the parties with residual question, it is axiomatic that a party may petition the court for interpretation of the decision. This process does not amount to an appeal and it is illogical to suggest that the court has become functus officio in respect of the later suit. To the extent that Suit No. FHC/L/CS/563/2023 seeks interpretation of the judgment in Suit No. FHC/L/CS/482/2018, it does not in any way violate the doctrine of res judicata, not even remotely.
It should also be noted that section 95 (10) of the PIA preserves the right of an interest holder in an OPL even after application to assign the interest thereof to a third party has been refused. This enables the interest holder to make further representations in respect of the application for assignment. Consequently, a denial of consent [by the Minister or by Optimum] to the Share Acquisition, does not mean that AIOGL loses its interest in the OPL, or that any other interest holder in the OPL can lay adverse claims over AIOGL’s Interest in the Asset, based on a perceived reversionary right in the Interest. AIOGL is entitled to preserve its Interest in the OPL by any available legal means.
It is concerning that the author of the publications shunned the opportunity to ascertain the veracity of the statements and imputations contained in the publications. The author could have reviewed processes filed on behalf of the Plaintiffs in Suit No. FHC/L/CS/563/2023 or could have sought an audience with counsel to AIOGL or Lekoil 310 to, at least, balance the scales prior to going to the press. The publications therefore lack balanced journalism, are partisan, reckless, and are antithetical to the ethos of investigative journalism and balanced reportage. Further, as this matter remains sub judice, mounting an organized media campaign in any way to influence court proceedings remain an ethical violation of the principles of the rule of law and could give rise to contempt of court violations.
In conclusion, the court is public venue where the matter in respect of Suit No. FHC/L/CS/563/2023 will be heard, we therefore implore the discerning public to look beyond the superficial nature of the publication. We also use this opportunity to issue a caveat and caution all those who are dealing or considering dealing with the 22.86% participating interest held by AIOGL that this matter remains in the Federal High Court of Nigeria and all persons even though not party to this suit, are to avoid anything that will amount to assisting a breach of the court’s orders.
.Hamilton Esi is the General Manager, Corporate Communications, Lekoil Nigeria Limited.
