A Review of the Nigerian Energy Industry

Arco vs Agip: Counsel urges court to enter judgment in favour of claimant

29 October 2015, Lagos – Chief Wole Olanipekun, SAN, leading three other senior advocates in a case instituted by an indigenous oil servicing firm, Arco Group Plc, has said a Federal High Court sitting in Port Harcourt cannot hear argument canvassed by Nigerian Agip Oil Company, NAOC, through his lawyer, Chief Thompson Okpoko, SAN, unless it formally files its memorandum of appearance.

AgipArcoOlanipekun requested that the court, presided over by Justice Lambo Akanbi, enter judgement in the claimant’s favour in the absence of the memorandum of appearance.

Arco has maintained that Agip is not appearing formally before the court, having not filed its memorandum of appearance, hence it (Agip) cannot raise the issue of jurisdiction being canvassed.

Apart from NAOC, other defendants in the suit are Nigerian National Petroleum Corporation, NNPC, Conoco Phillips Petroleum Nig. Ltd, and National Petroleum Investment Management Services.

The issue of awarding of contracts in the turbine at first defendant’s OB/OB, Ebocha and Kwale gas plants, forms the subject matter of the suit.

At the resumed hearing of the matter, lead counsel to the claimant informed the court that in the absence of any memorandum of appearance till date, the court should proceed to grant leave to him to move his motion dated June 22, 2015, praying that judgement be entered in claimant’s favour, insisting that the motion was overdue for hearing.

Okpoko, however, objected to Olanipekun’s prayers, arguing that they had filed a motion for leave for extension of time within which to file and serve its memorandum of appearance dated June 30, 2015, which he claimed was served on the claimants’ counsel in the open court.

He argued that the second prayer in the motion was for an order deeming the memorandum of conditional appearance as duly filed and served on the claimant.

He urged the court to discountenance the motion for judgement.

In his response, Olanipekun submitted: “My learned friend has misconstrued order 26, rule 5. Let us compare it with order 29, rule 2, which used the word ‘must’ and not ‘may’. Your lordship has no jurisdiction to grant this application. It is incompetent. The application was brought under order 56, rule 1. That deals with miscellaneous provisions. He cannot hide under it to file out of time.

“It is order 48, rule 4 that is the application. Your lordship cannot even grant the application because there is no evidence of payment. We want to say that there is nothing like inherent jurisdiction in the absence of jurisdiction.”

Citing the Supreme Court decision in Inakoju v. Adeleke & others (2007), where the court held that it could not grant audience to a party that has not filed memorandum of appearance, Olanipekun said the natural thing to do in such circumstance would have been to give judgement in favour of his client.

Not comfortable with Olanipekun’s argument, Okpoko insisted that no other application could be statutorily heard until their motion seeking for extension of time was dispensed off.

Okpoko argued that Justice Akanbi could not accede to Olanipekun’s argument since by the rule of the court, any party who intended to “oppose a motion ought to file a written address or a counter-affidavit which must be served on the defence.”

Quoting order 26, rule 5 of the court rule, the defence counsel said the claimant could not be heard in opposition to his motion.

He submitted that the court should rule in the favour of his client, NAOC.
After much argument, Justice Akanbi adjourned ruling till December 3 on whether the application for extension of time was properly filed or not.

He also urged parties in the suit to maintain peace pending the resumption date.

The court had restrained the defendants from awarding any contract to any company for the maintenance of gas turbines and rotating equipment at first defendants OB/OB, Ebocha and Kwale gas plants, pending the hearing and determination of the substantive suit.

However, the plaintiff alleged a breach by NAOC for awarding contract to Plantgeria Company Ltd.

In the originating summons, Arco is challenging the refusal of the NOAC to comply with the provisions of Section 3 Sub Section 2 and 3 of the Nigeria Oil and Gas Industry Content Development Act, 2010.


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