Arco vs Agip: Missing Case File Compels Court to Adjourn to June 23

Ernest Chinwo The Federal High Court sitting in Port Harcourt yesterday adjourned hearing on a matter filed by an indigenous oil servicing firm, Arco Group Plc, against the Nigerian Agip Oil Company Limited (NAOC).

The court, presided over by Justice Lambo Akanbi, was to rule on a motion filed by counsel to Agip, Thompson Okpoko (SAN) challenging the jurisdiction of the court to hear the suit.

On resumption of sitting yesterday, however, Akanbi said he could not find the case file and adjourned the matter to June 23 within which period he hoped to find the misplaced file.

However, before the adjournment, counsel to Agip, Okpoko, had complained to the court that counsel to Arco, Beluolisa Nwofor (SAN), had a day after the last sitting of the court, published a Form 49 in which he inserted the name of a person for committal even when the court had fixed a date for ruling on jurisdiction.

He argued that the publication was capable of affecting the ruling on the motion on jurisdiction and could also send the wrong signal to the public.

He therefore urged the court to ask for the retraction of the publication.

But in his reaction, Nwofor said the publication was in line with an order of the court for substituted service on some persons whom the court bailiff could not effect personal service.

“The court granted an order for substituted service on the defendants by publishing in The Guardian and THISDAY newspapers. So, we have not done anything contrary to the order of the court. It has nothing to do with the ruling on jurisdiction slated for this morning,” he said.

After listening to both counsel, Akanbi said, “Since the publication had not been made before the issue of jurisdiction came up, it is also not fair that having adjourned for ruling, the publication asking for committal comes up.”

Answering questions from journalists after the court session, Nwofor said it was not unusual for case files to be misplaced.

“I will rather say it is not unusual for case files to be misplaced. We hope that by the next adjourned date, the file would be available and we will go on with the matter,” he said.

Arco had dragged Agip, Nigerian National Petroleum Corporation (NNPC), Conoco Philips Petroleum Nigeria Limited and the Nigeria Petroleum Investment Management Services (NAPIMS) before the court to determine whether in view of the provision of section 3 subsections (2) and (3) of the Nigerian Oil and Gas Industry Content Development Act, 2010, having demonstrated ownership of equipment, Nigerian personnel and capacity to execute the task of performing the contract for the maintenance service of rotating equipment at the Nigerian Agip Oil Company gas plants at OB/OB, Ebocha and Kwale, it is entitled, being a Nigerian company, to the exclusive right to be considered and granted such contract including any extension of its duration?

The presiding judge of the court, Justice Lambo Akanbi, while ruling on the ex-parte application brought by Arco, had on February 4 restrained Agip and its agents from awarding or taking any step to award to any person, company or firm except Arco any contract whether designated as interim, stop-gap for the maintenance of gas turbines or rotating equipment at Agip’s OB/OB, Ebocha and Kwale gas plant pending the hearing and determination of the motion on notice for the order of interlocutory injunction.

Since the defendants were alleged to be avoiding service of the court’s order, the court again ordered that they be served by substituted means through advertorial in two national newspapers, namely THISDAY and The Guardian.

It also ordered the Managing Directors of Agip and Plantgeria Company Limited, Mr. Insula Massimo and Mr. P. L. Carrodano to appear before him on Monday, April 27, to inform the court why they should not be committed to prison for disobeying the order of the court.

On the next adjourned date, Arco informed the court that Agip had disobeyed its orders, prompting it to file committal processes against the defendants.

This made Justice Akanbi to fix June 23 to hear the contempt charges filed against Agip.

He therefore ordered the two chief executive officers to ensure that they are present in court on the said date to show cause why an order for their committal to prison should not be made.

But in a move alleged to be a ploy to delay and frustrate the suit, Agip has challenged the court’s jurisdiction to hear the suit.

In the substantive suit, Arco is also seeking the court to determine whether the persistent and deliberate refusal by Agip to give exclusive consideration to it in respect of the contract for the maintenance and service of rotating equipment machines at the defendant’s gas plants at OB/OB, Ebocha and Kwale and to grant an extension of such contract by way of an interim or stop-gap contract is not a violation of the spirit and letters of section 3 subsections (2) and (3) of the Nigerian Oil and Gas Industry Contract Development Act, 2010.

The firm is seeking a declaration that by virtue of section 3 subsections (2) and (3) of the Nigerian Oil and Gas Industry Content Development Act, 2010, having demonstrated ownership of equipment, Nigerian personnel and capacity to execute the task of performing the contract for the maintenance and servicing of the rotating equipment machines at the Nigerian Agip Oil Company gas plants at OB/OB, Ebocha and Kwale, it is entitled, being a Nigerian company, to the exclusive right to be considered and granted such contract including any extension of its duration.

It is further asking the court to declare that the persistent and deliberate refusal by the first defendant to give exclusive consideration to it in respect of the contract for the maintenance and servicing of the rotating equipment machines at the Nigerian Agip Oil Company gas plants at OB/ OB, Ebocha and Kwale, and to grant extension of the contract by way of an interim or a stop-gap contract, is a deliberate violation and sabotage of both the spirit and letter of section 3 subsections (2) and (3) of the Nigerian Oil and Gas Industry Content Development Act, 2010, and is, therefore, illegal, unlawful, ultra vires its powers under the law, null and void and of no effect whatsoever.