Court strikes out Agip’s objection to suit against contract award

Justice Lambo Akanbi of the Federal High Court, Port-Harcourt, Rivers State has struck out a preliminary objection filed by Nigerian Agip Oil Company Limited (NAOC), challenging its jurisdiction in a suit brought against it by an indigenous oil services company, Arco Group Plc.

Arco had filed the action against NAOC over a disagreement between both parties on award of contract for maintenance of facilities at NAOC gas turbines. Arco is claiming the right to be awarded the contract having won the bidding process and was recommended for the job by the Nigerian National Petroleum Corporation (NNPC). But the contract, it alleges, has been awarded to another company, Plangeria Company Ltd.

Akanbi, in his ruling, held that the preliminary objection was incompetent and accordingly struck it out. He, however, refused to agree with the plaintiff’s claim that the preliminary objection by the defendants was not properly signed by the 1st defendant’s legal practitioner as stipulated by the law, claiming that the signature of the author of the notice was contained in the last page.

Joined as defendants in the main suit besides NAOC are NNPC, Conoco Phillips Petroleum Nig. Ltd, and National Petroleum Investment Management Services (NAPIMS).

Arco Group is claiming that the 2nd to 4th defendants, through NAOC and Plangeria, took steps to mobilise their officials to the contested site contrary to a court order restraining the defendants from doing so pending the determination of the substantive suit filed by Arco. The court had restrained the defendants from awarding any contract to any company for the maintenance of GasTurbines and Rotating Equipment at the first defendant’s OB/OB, Ebocha and Kwale gas plants, pending the hearing and determination of the substantive suit. The plaintiff also alleged that there was a breach by NAOC for awarding the contract to Plangeria.

In its pleading, the plaintiff had canvassed that the filing of preliminary objection by the defendants to its suit was in “violation of the provision of Order 29 Rule 2 of the Court as the objectors did not file a memorandum of appearance before filing the objection.” It also raised an issue that the preliminary objection by the defendants “was not properly signed by the 1st defendant’s (NAOCL) legal counsel as stipulated by law.”

Ruling on the arguments canvassed by both parties, Justice Akanbi held: “The defendant/objector herein did not file any memorandum of appearance before filling their notice of preliminary objection. The consequence is that they took that step in violation of the provisions of Order 29 rules (1) and (2) of the Court rules.

“That is a defect which, in my respective view, is fundamental to the defendant filing their notice of preliminary objection. Consequently, I am in complete agreement with the argument of learned senior counsel for the plaintiff that the preliminary objection was filed in flagrant disobedience to the Rules of the Court.

“The end result is to strike out the preliminary objection for being incompetent. An order is accordingly made striking out the preliminary objection for being incompetent.”

However, the court went ahead to direct parties to address it on the issue of jurisdiction as earlier raised by the defendant.

Justice Akanbi said: “That is not the end of the matter though. It is trite that the issue of jurisdiction is a threshold one. Once same is raised, the court must decide whether or not it has jurisdiction to entertain the claim for, no matter how well conducted the proceedings are, if the court lacks jurisdiction, the entire proceedings will be a nullity. “In the circumstance, I hereby su motu, raise the jurisdictional competence of this court to entertain the plaintiff’s claim. Parties are accordingly advised to address me on same,” Justice Akanbi said.

He subsequently adjourned further proceedings to June 30, 2015.