A three-member panel of justices, headed by Justice Okon Abang, adjourned the case after lawyer to the appellant (Agip), Inyene Robert, moved a motion to regularise their processes and was granted by the court.
Robert told the court that though their notice of appeal was filed within time, the record of appeal was not transmitted within time.
The lawyer then said a motion for extension of time to bring the record of appeal had been filed.
She equally filed a motion dated Nov. 22 for the appellant’s brief to be deemed as properly filed.
Justice Abang also granted it after it was not opposed by counsel to the 1st respondent (Malabu), Dr Reuben Atabo, SAN.
The News Agency of Nigeria (NAN) reports that the appeal stemmed from a Dec. 22, 2020 judgment delivered by Justice Binta Nyako of a Federal High Court in Abuja in suit number: FHC/ABJ/CS/201/2017 in favour of Malabu.
Malabu had sued the Federal Government of Nigeria (FGN) and seven others, including Nigerian Agip Exploration Ltd.
In the ruling, Justice Nyako struck out the appellant (Agip)’s preliminary objection dated April 21, 2017.
Dissatisfied with the decision, Agip filed the appeal, seeking an order setting aside the lower court ruling.
The appellant sued Malabu, FGN, Minister of Petroleum Resources, Shell Nigeria Ultra-Deep Ltd, Shell Nigeria Exploration and Production Company Ltd and Chief Dan Etete as 1st to 6th respondents respectively.
Giving four grounds of argument, Agip said the lower court failed to resolve the issues submitted to it, amounting to a breach of the appellant’s constitutional right to fair hearing and occasioned a miscarriage of justice on the appellant;
It also argued that the lower court erred when it failed to strike out the suit for being statute barred by virtue of Section 2(a) of the Public Officers Protection Act (POPA) Cap P41 LFN 2004, among other grounds.
However, in its brief of arguments to counter the appellant’s submissions filed by a team of lawyers led by J.A. Achimugu, Malabu Oil and Gas Ltd prayed the appellate court to dismiss the appeal in its entirety and affirm the decision of the lower court.
On Agip’s argument that it was not given a fair hearing by the lower court, Malabu submitted that the appellant was speaking with two sides of its mouth.
“I most humbly urge my Lords to hold that to appeal against a decision on issues and then turn around to complain that the court failed to render a determination on those same issues amounts to approbating and reprobating at the same time as both are not consistent.
“| urge my lords to refuse the appellant’s argument on the point that the court did not render a decision on the issues of the action being statute barred and abuse of court process.
“I humbly draw my Lords attention to the indisputable fact that the defendants at the trial filed their respective notices of preliminary objection which were all heard together and determined in a composite ruling.
It argued that there was no denial of fair hearing as alleged by the appellant as all the judicial decisions cited and relied upon by the appellant on denial of fair hearing were inapplicable to the case.
“I urge my lords, with respect, not to be guided thereby in reaching a determination on this appeal,” the 1st respondent said.
On the argument that the suit was statute barred and the lower court lacked jurisdiction to entertain it, the 1st respondent submitted that “in determining whether an action is statute barred, recourse must be made to the originating process to ascertain the nature of claim and when the cause of action arose.”
It said it was not in dispute that the suit was commenced outside the three months’ limitation period provided for by Section 2{a) of POPA.
“However, it is very humbly submitted that the three months’ limitation period does not operate as an absolute bar which admits of no exceptions to that general rule.
“Section 2(a) of POPA, does not offer an absolute blanket shield to public officers for the perpetuation of illegalities and injustices and therefore admits of judicially recognised circumstances when that limitation period becomes inapplicable to protect the public officer,” it said.
Malabu further urged the Appeal Court to hold that public officers are not protected by Section 2(a) of POPA where the case involved is in respect of breach of contract, where the case involves recovery of land or oil fields, among others, citing previous cases to back the argument.
It would be recalled that Malabu Oil and Gas Ltd was granted OPL 245 on April 29, 1998. The said licence was revoked in 2001 and the company filed an action challenging the said revocation.
The suit was settled out of court leading to the re-grant of the OPL 245 to Malabu on July 2, 2010.
While Malabu’s licence to OPL 245 was valid and subsisting, the FRN and petroleum minister (2nd and 3rd respondents) were alleged to have entered into a “Block 245 Resolution Agreement” on April 29, 2011 to grant the same licence to Agip (appellant), the 4th and 5th respondents.(NAN)
