Court sets aside $2.5b judgment by Shell, Esso against NNPC

The Court of Appeal in Abuja has set aside a portion of an arbitral award got by Shell Nigeria Exploration and Production Limited (Shell) and Esso Exploration and production Limited (Esso) against the Nigerian National Petroleum Corporation (NNPC).

By the portion of the award, made by an arbitration tribunal in Lagos on October 24, 2011, NNPC was ordered among others, to pay Shell and Esso over $2.5billion for abusing a Production Sharing Contract (PSC) between them in relation to the operation of an oil filed identified as Erha Deepwater Project. Shell and Esso particularly, accused NNPC of assuming their responsibilities, under the PSC, including determining what should be paid to the Nigerian government as petroleum profit tax (PPT), and that in so doing, NNPC over lifted petroleum products valued at $1,207,500,000 to pay its unilaterally assessed tax on their behalf (Shell and Esso). On learning about the Shell and Esso case against NNPC, which will require it to refund the tax paid to it by NNPC on behalf of Shell and Esso, the Federal Inland Revenue Service (FIRS) went before the Federal High Court in Abuja, in suit No: FHC/AB/CS/764/11, to challenge the aspect of the arbitral proceedings relating to tax issues.

The arbitration tribunal, at the end of its proceedings on October 24, 211, ordered NNPC to pay Esso and Shell $1,799,000,000, “with simple interest at the rate of 30-day LIBOR plus 4per cent from December 17, 2007 (the date of breach) until April 30, 2011,” estimated at $243,000,000. It asked NNPC to pay another “simple interest at the rate of 30-day LIBOR plus 4per cent on the $1,799,000,000 from April 30, 2011 up until the date of payment;” and a further “sum determined by the volume and value of over lifting by the respondent that has taken place since April 30, 2011 and until the date of this final award, plus simple interest at the rate of 30-day LIBOR plus 4per cent from April 30, 2011 up until the date of payment.”

However, in his judgment on March 9, 2012 on the suit by FIRS, Justice Adamu Bello (now retired) of the Federal High Court, Abuja set aside the October 24, 2011 arbitral award/judgment on the ground that the arbitration tribunal lacked the jurisdiction to have entertained dispute relating to tax, a decision Shell and Esso appealed to the Court of Appeal, Abuja. The Court of Appeal, in a unanimous judgment of a three-man panel on March 10 this year, a copy of which The Nation accessed last Friday, set aside the monetary award against NNPC, held that oil companies lacked the power to determine what profit tax to pay and that such responsibilities reside solely with the FIRS under the country’s laws.