Federal High Court in Ikoyi, Lagos has granted an interim Mareva injunction directing commercial banks to block Shell Petroleum Development Company of Nigeria Limited accounts in a bid to recover the cash value of more than 16 million barrels of crude oil allegedly diverted by the oil giant from AITEO Eastern E & P Company Limited.
Justice Oluremi Omowunmi Oguntoyinbo, who gave the order, following an ex parte application in suit no FHC/L/CS/52/202 where AITEO Eastern E & P Company Limited is the plaintiff/applicants and SPDC Ltd is the first defendant.
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 are second, third, fourth and fifth defendants; 20 banks where the Shell companies operate accounts in Nigeria are the respondents in the suit.
AITEO’s application was filed by Messrs Kemi Pinheiro (SAN) and Dapo Olanipekun (SAN).
Justice Oguntoyinbo directed the 20 banks to “ring-fence any cash, bonds, deposits, all forms of negotiable instruments to the value of $2.7 billion and pay all standing credits to the Shell companies up to the value into an interest-yielding account in the name of the Chief Registrar of the court.”
The CR is to “hold the funds in trust” pending the hearing of the motion and determination of the motion on notice for interlocutory injunction filed before it by AITEO.
The order followed an application by AITEO Eastern E & P against SPDC and the other defendants with the 20 lenders as respondents.
The court restrained the defendants or their agents/privies from presenting to the banks “any mandate or instrument for the withdrawal of any money and /or funds standing to the credit of any of the accounts” of the defendants kept/maintained “at any of the named respondent banks … “without first preserving/ring-fencing the sum of $1,251,305.5 or its equivalent in any other official currency, including but not limited to the naira and/or pound sterling being the value of the plaintiff’s 1,022,029 barrels of crude oil (at the rate of $79.50 per barrel as stated in the Department of Petroleum Resources (DPR) letter dated 8th day of July, 2020.”
The defendants were further restrained in the interim from presenting to the named banks any mandate or instrument for the withdrawal or any money and/or funds standing to the credit of any of the accounts of the five defendants kept or maintained at any of the named respondent banks and or their branches without first preserving and or ring-fencing the total sum of $2,700,583,779,75 or its equivalent in any other official currency comprising of $799,000,000.00.
The sum is “the amounts claimed to have been paid in this suit by the plaintiff to the five defendants for the acquisition of the Nembe Creek Trunk Line (NCTL)pipelines and the assets; $389,631,877.76 being the total amount claimed in this suit as having been lost by the plaintiff arising from the leakages in the NCTL and the degraded conditions of the NCTL; $578,951,901.99 being the total amount claimed in this suit as having been lost by the plaintiff arising from the crude theft/larceny in the NCTL; $933,000,000 being the total amount claimed in this suit as having being expended by the plaintiff for the repairs of the pipelines and acquisition of the equipment including well-heads, generators and pumps as well as replacing the flow lines within the NCTL;
“That pending the hearing and determination of the motion on notice for interlocutory injunction, the named banks whether by themselves, director, managers, officers or howsoever are restrained in the interim from accepting, honouring or giving effect in any manner howsoever to any mandate, cheque or instructions presented by all the five defendants whether by themselves or through their agents or privies for the withdrawal of any sum of money and/or funds standing to the credit of all the defendants kept and or maintained at any of the named banks and or their branches without first preserving and or ring-fencing the sums as ordered in prayers 1,2,3 and/or 4 above.”
Justice Oguntoyinbo further directed the respondents banks “to pay any sums of money standing to the credit of the defendants within 48 hours of the service of the order of this honourable court up to the sum/value of the amounts stated in prayers 1,2,3, and 4 above into an interest yielding account in the name of the Chief Registrar of this honourable court, who is to hold same in trust;
“Pending the hearing and determination of the motion on notice for interlocutory injunction, the respondent banks are directed to sequestrate and/or ring-fence any cash, bonds, deposits, all forms of negotiable instruments or chose(s) in the action due to or standing to the credit sum/value of the amounts stated in prayer 1,2,2 and/or 4 above;
“that pending the hearing and determination of the motion for interlocutory injunction, the named banks are directed to file within 48 hours of service of the order of this honourable court on them returns of the statement of account of the all the five defendants maintained with them as at the date of the order of this honourable court, such returns to be verified by affidavits.
When the matter came up on Monday, the court was informed that the defendants had filed an application seeking to discharge the order.
The judge adjourned further proceedings till Wednesday, February 24.
AITEO and some other indigenous oil producers had a dispute with Shell alleging that the company short-changed them using an unapproved methodology to calculate the volume of crude it lifts on their behalf from the terminal. They jointly allege that Shell deploys underhand practices including using unapproved meters to facilitate crude theft.
Following an investigation into the dispute by the DPR, Shell in a letter with reference number: SPDC-COM-2021-00951, addressed to the agency, admitted that it had indeed installed unapproved metering systems and agreed to refund more than 2 million barrels of crude it had illegally taken from the producers (Belema Oil, AITEO, Eroton and NewCross) between 2016 and 2018.
Titled: “Re-Allocation of Bonny Terminal gross Volume from June 2016 to July 2018 Based on Computation of Metered Gross Volume Between the Coriolis Meter and LACT unit Installed on the NCTL” and signed by Business relations & JV Excellence Manager at SPDC, Steve Okwuosah, read: “We refer to your letter Ref: DMR/CTO/COA/COM/V.5/045 dated 28 January, 2021 in respect of the above subject.
“We note your directives as contained in the above-refrenced letter and wish to confirm that The Shell Petroleum development Company of Nigeria limited (SPDC) will implement the refund of the 2,081,678 barrels of oil from the Trans Niger Pipeline (TNP) injectors (SPDC, TEPNG, NDPR and WSPOL) to the Nembe Creek Trunk Line (NCTL) injectors (Aiteo, Belemaoil, Eroton and Newcross) over the period from January 2021 till November 2021 in accordance with schedule 11 as contained in the Department of Petroleum resources (DPR) letter Ref: DMR/CTO/COA/COM/V.5/230 dated 14th December, 2020.”