Court Fixes March 2, for Ruling On Committed Proceedings Against Shell, Others
Justice Oluremi Oguntoyinbo of a Lagos Federal High Court, today, fixed March 2, for ruling on whether to entertain motion challenging the Court’s jurisdiction or the contempt proceedings in a suit filed by Aiteo Eastern E&P Company Limited against Shell Petroleum Development Company of Nigeria (SPDC) and four others.
Justice Oguntoyinbo fixed the date, after listened to the arguments from counsel representing parties the suit, when the matter was called today.
Other respondents in the suit marked FHC/L/CS/52/2021 are: Royal Dutch Shell Plc; Shell Western Supply and Trading Limited: Shell International Trading and Shipping Company Limited and Shell Nigeria Exploration and Production Company Limited.
At the resumed hearing of the matter today, Aiteo’s counsel, Mr Kemi Peinhero, (SAN) who lead Dr. Oladapo Olanipekun and Mr Emeka Ozoani, both Senior Advocates of Nigeria (SAN) told court that they have motions for interlocutory injunction and committal proceedings applications, which were scheduled to be heard today.
Pinheiro (SAN) notified the court that five of the banks; have comply with the directive of the court, while three others; FCMB, Wema Bank PLC and Zenith Bank Plc have no relationship with the defendant. He asked the court to discharge the banks.
But counsel to the respondents, Mr Wale Atake (SAN) informed the court that he have two applications pending before the court. He said one application is seeking to stay proceeding and the other challenging the jurisdiction of the court and as well discharge exparte marafa injunction.
He told the court that fifth defendant, Shell Nigeria Exploration and Production Company Limited, also have a motion seeking and extension of time to file response to the plaintiff motion.
Mr Olawale Akoni (SAN) who represented all the banks in the suit, told court that he have two application. He said one is Motion on notice dated February 1, 2021, while the second application is the one challenging contempt proceedings dated February 21, 2021.
However, the plaintiff’s counsel, Mr. Pinheiro (SAN) argued that Atake’s motion to seek extension of time to file response to the plaintiff motion as well as challenging jurisdiction at the same time cannot be taken. He said the first defendant (Shell) cannot aprobate and reprobate at the same time.
He argued that he cannot be challenging the jurisdiction as well as asking same court to give him time for regularisation, extension of time to file response.
Akoni (SAN) however, pointed out that application the contempt proceedings cannot be heard. He noted that until the issue of legality is settle that the court can hear contempt.
“I submitt that where a defendant is challenging the validity of the court, the court cannot until the issue of legality is settle. The position of the law in Group Dannon v. Foltis 2008 7NWLR part 1087 at page 367. The validity in this case is fundamental. The issue of contempt is not arise”, he stated
Responding, Pinheiro (SAN) that banks are not party to the application. He said the contempt proceedings is between the plaintiff and the defendants. And that the commital proceedings commence when the application file before High Court in order to trigger the question of priority.
He said committal proceeding commence upon service of Form 48 and not form 49 or any other application. Cited Ape v. Olumo 2010 LPELR 4988 to butress his submission on principle of Ebodaghe.
“Once the court is satisfy that form 48 has been serve, the motion for proceeding have been triggered. What the court is concern at the stage is priority. The banks are not party to the proceedings, they are not respondent and they have no influence. I refer my lord to Odua Jolaoso 2005, 16 NWLR part 950 at page 178. Ebodaghe has not been overuled but affirmed”.
Pinheiro (SAN) submitted that Atake argument is premature, urged the court to give priority to committal proceedings.
Atake had earlier argued that is clients ware affected by the order. He said the rules allow the Ex-parte Order to be discharge within 14 days that court should invoke order 26.
Upon listened to counsel’s submission, Justice Oguntoyinbo adjourned ruling to March 2, 2021.
It would be recalled that the court had issued an injunction barring Royal Dutch Shell’s Nigerian subsidiares from withdrawing money at 20 local banks until it ringfences potential damages in a lawsuit brought against the oil major by Aiteo Eastern E&P.
Aiteo is seeking about $4 billion in total over alleged problems with the Nembe Creek Trunk Line (NCTL) pipeline it bought from the Anglo-Dutch group in 2015 and over claims Shell undercounted its oil exports.
Aiteo is seeking compensation over what it says was the poor condition of the pipeline and associated lost oil sales.
Aiteo also accuses Shell of deliberate improper metering of the Nigerian company’s oil exports from the Bonny Light terminal. It is seeking $2.7 billion over the pipeline deal plus $1.28 billion for lost oil sales.
The Shell Petroleum Development Company (SPDC) said the allegations are factually incorrect.